Petition for Writ of Certiorari — Sea-Land Service, Inc. v. Tinsley

, aay 7. U.S,

, SED

92-1868 jj wriziss

No. 93-__ | OFFICE OE THE CLERK

een

In the Supreme Court

OF THE

United States

July Term, 1993

SEA-LAND SERVICE, INC.,

Petitioners,

VS.

CLARENCE F. TINSLEY and MARION TINSLEY,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

SCHWABE, WILLIAMSON,

FERGUSON & BURDELL

By: JEROME C. SCOWCROFT

Counsel of Record

1420 5th Avenue, Suite 3400

Seattle, WA 98101

(206) 622-1711

Attorneys for Petitioner

Sea-Land Service, Inc.

i

QUESTIONS PRESENTED FOR REVIEW

The Ninth Circuit Court of Appeals has affirmed a

judgment holding the shipowner liable when a chief mate

was injured by a condition which remained a hazard solely

because the chief mate neglected his duties over a period of

years. The Ninth Circuit also affirmed an order awarding

postjudgment interest before the shipowner had been judged

liable for the hazardous condition. Sea-Land’s Petition for

Writ of Certiorari presents the following questions for

review:

1. Should a chief mate be held to a higher

standard of care than ordinary seamen in determining the

extent to which the shipowner should be held responsible for

injuries which the chief mate suffered because of conditions

for which he was responsible.

2. Can post-judgment interest accrue under 28

U.S.C. §1961 before the trial court has apportioned liability.

i

LIST OF PARTIES

The petitioner in this Court is Sea-Land Service, Inc.

The action was originally brought against Sea-Land

Corporation, of which Sea-Land Service, Inc., was a wholly-

owned subsidiary. Sea-Land Corporation was subsequently

merged into Sea-Land Services, Inc. Respondents in this

Court are Clarence F. Tinsley and Marion Tinsley, husband

and wife. There were no other parties in the lower court

proceedings.

RULE 29.1 STATEMENT OF RELATED

CORPORATIONS

Petitioner is a wholly-owned subsidiary of CSX

Corporation. CSX Corporation has many other subsidiaries,

all of which are wholly-owned. Sea-Land Service, Inc., also

has numerous subsidiaries, all of which are wholly owned.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....

og ge 9) ee

RULE 29.1 STATEMENT OF RELATED

SC EMIMEME™ sec S ss bs. 06 ees ecdecceces

JURISDICTION IN THE COURTS BELOW _..

COURSE OF PROCEEDINGS

AND DISPOSITION BELOW ...............

JURISDICTION OF THE SUPREME COURT ..

CONSTITUTIONAL, STATUTORY, AND

OTHER AUTHORITY INVOLVED ..........

Samneenes Oe [ri CASE ...... ccc eees

I.

ee ee ee ae

Il.

oe ge SD Te Ce |e 8), |» er

A. _ Tinsley’s background and experience ...

B. The stowage of containers on the

eee eae

iV

TABLE OF CONTENTS

‘. Tinsley’s ability to anticipate the

unseaworthy condition .............. 9

D. Tinsley’s responsibility for safety ...... 9

E. The circumstances of Tinsley’s injury .. 10

F. Tinsley’s ability to have avoided the

unseaworthy condition ............. 10

G. The means available to read the container

temperatures safely ............... 12

H. _ Tinsley’s failure to report the

dangerous condition............... 13

I. Sea-Land’s reliance on Tinsley

to report the unseaworthy

ee ae ee 13

J. Sea-Land’s ability to correct

the unseaworthy condition .......... 15

REASONS FOR GRANTING THE WRIT ....... 16

I.

THE NINTH CIRCUIT’S DECISION CONFLICTS

WITH THE SUPREME COURT'S POLICY OF

PROTECTING SEAMEN FROM UNSAFE WORKING

CONDITIONS ABOARD SHIP ................ 16

A. Standard of Review ............... 16

B. The law of unseaworthiness must

account for the means which the

shipowner has to make the

re 17

Cc. As between Sea-Land and Tinsley,

Tinsley was solely responsible for

co ee eee re ee ee ee 18

Vv

TABLE OF CONTENTS so

D. The legal standard applied by the Ninth

Circuit was inappropriate to Tinsley’s

position as the officer responsible for

the condition which caused his injury .. 20

E. This Court has recognized on other

occasions that the ship’s officers

are subject to a higher standard of

conduct than ordinary seamen ....... 25

II.

THE NINTH CIRCUIT’S DECISION CONFLICTS

WITH THOSE OF OTHER COURTS WHICH HAVE

HELD THAT A SHIP’S OFFICER CANNOT

RECOVER FOR INJURIES CAUSED BY HIS

NEGLECT OF THE DUTIES OF HIS OFFICE ... 28

III.

THE NINTH CIRCUIT ERRED IN AFFIRMING

THE AWARD OF POST-JUDGMENT INTEREST

FROM A TIME WHEN SEA-LAND’S LIABILITY

HAD NOT YET BEEN ESTABLISHED ......... 36

ee & 6) 6s | Pew Ererrrenr cree se ks 43

vi

TABLE OF AUTHORITIES

Cases

Page

Bulla v. Sea-Land Service, Inc.

PWD, DE- TAPS (EARP OOPS) oo ccc ec eewccenewesss 34

Caddy v. Texaco,

poe PO St eee ee ee ee 28

Cortes v. Baltimore Insular Line, Inc.

ee ft | reer Tere eer re 25, 27

Dixon v. United States

em Be Le Ae. re 29-31

Kaiser Aluminum & Chemical

Corp. v. Bonjorno,

Pe CE EO 6 oak bcd de ec db ewe sa ake as 36-38

Maersk Line, Ltd. v. Bernard

SO DRWUE (RRA ROIED 5 oc ec eecesnseueeasns 34

Mahnich v. Southern S. S. Company,

ge Re ee re ee 17

Mitchell v. Trawler Racer, Inc.,

a er ere 17

Vii

TABLE OF AUTHORITIES

Peymann v. Perini Corp.,

507 F.2d 1318 (1st Cir. 1974) ......... 0c eee eeee 28

Reinhart v. United States,

457 F.2d 151 (9th Cir. 1972)... 0.2.2 ee eee ee eee 31

Skandalis v. M/V_ Galini,

1974 AMC 1671 (E.D.Va.1974) ........---+:- 24, 25

Socony- Vacuum Oil Co., Inc. v. Smith,

305 US. 424 (1939) ... 2... cee e cere e eee nees 26

Stanworth v. American Steam Trawlers, Inc.,

523 F.2d 46 (9th Cir. 1975) .......----eeeee 31, 33

United States v. Parke, Davis and Co..,

362 US. 29 (1960),

later app. 365 U.S. 125 (1961) ....------+-e sees 16

United States v. Singer Manufacturing Co.,

374 US. 174 (1974) ... ccc cece sec cecccecces 16

Walker v. Lykes Bros. S.S. Co.,

193 F.2d 772 (2d Cir. 1952) ......---eeeeeeee 29-31

Federal Statutes

, yas Tom oy Sr ares a ay es wre ee oe 2

y RRR Tod? Gs. Se orrer eee re ee ee ee se 2

y DAA sd er a ee ere ge 6

TABLE OF AUTHORITIES

pA Sop pe er eee rere Sone ta ey ee 6, 36

Jones Act, 46 U.S.C. § 688 ee ED ne Or EE 2, 6

Treatise

1 Norris, The Law Of Seamen

NE 5 eo esd vans oan nines 27

No. 93-__

In the Supreme Court

OF THE

United States

July Term, 1993

SEA-LAND SERVICE, INC.,

Petitioners,

VS.

CLARENCE F. TINSLEY and MARION TINSLEY,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court

2

of Appeals for the Ninth Circuit entered in these

proceedings on February 16, 1993.

JURISDICTION IN THE COURTS BELOW

Respondents brought this action under the Jones Act,

46 U.S.C. § 688, and general maritime law, to recover for

damages allegedly suffered by Clarence Tinsley ("Tinsley")

while employed as a chief mate on the vessel

GALVESTON, operated by petitioner. The District Court

exercised jurisdiction under 28 U.S.C. § 1333(1). The District

Court entered its final judgment in favor of respondents on

May 30, 1991. The Court of Appeals exercised jurisdiction

over petitioner’s appeal pursuant to 28 U.S.C. § 1291.

COURSE OF PROCEEDINGS

AND DISPOSITION BELOW

The action was first tried to the District Court on

March 20, 1989. The District Court found that the vessel was

unseaworthy and Tinsley was free from contributory

negligence. Judgment was entered in favor of respondents

on March 24, 1989, for $721,673.00.

ae

3

Sea-Land appealed on April 13, 1989. The Ninth

Circuit filed a Memorandum Decision on October 29, 1990,

which reversed the district court’s finding that Tinsley was

free from contributory negligence and remanded with

instructions to determine the extent to which Sea-Land’s

liability should be reduced on account of Tinsley’s fault.

On May 29, 1991, the District Court filed

supplemental findings of fact and conclusions of law which

assessed Tinsley’s fault at 10% and reduced the damage

award to $649,505.70.' The District Court awarded post-

judgment interest at 9.43% from its original judgment of

March 24, 1989. The judgment on remand was entered on

May 30, 1991. On July 12 the District Court entered

Supplemental Findings of Fact and Conclusions of Law

which adopted proposed findings submitted by the plaintiffs’

counsel. The District Court vacated the Supplemental

‘Due to a computational error, the amount of Sea-Land’s Liability

was stated to be $654,986.70. However, the parties have agreed that the

correct amount is $649,505.70, and the judgment has heen satisfied in

that amount.

4

Findings of Fact and Conclusions of law three days later

without entering any new findings or conclusions.

On June 4, 1991, Sea-Land appealed from the

District Court’s Judgment on Remand. Sea-Land contended

that the District Court’s apportionment of liability was

erroneous as a matter of fact and law, and the award of

post-judgment interest from the date of the District Court’s

original judgment was erroneous as a matter of law. On

November 20, 1992, the Ninth Circuit issued two decisions

affirming the judgment on remand. One decision was a

memorandum decision, not for publication, which affirmed

the apportionment of responsibility for Tinsley’s injuries. The

second decision, published at 979 F.2d 1382 (9th Cir.1992),

affirmed the award of post-judgment interest. Sea-Land filed

a petition for rehearing on December 3, 1992, which was

denied by the Ninth Circuit on February 16, 1993.

The following opinions are reprinted in the Appendix:

the findings of fact and conclusions of law filed by the

5

district court on March 27, 1989 (A-1); the memorandum

decision filed by the Ninth Circuit on October 29, 1990

(A-13); the district court’s supplemental findings of fact and

conclusions of law filed on May 29, 1991, the judgment on

remand entered May 30, 1991 (A-34); the findings of fact

and conclusions of law filed on July 12, 1991 (A-40), and the

order vacating the supplemental findings (A-45); the

memorandum decision filed by the Ninth Circuit on

November 20, 1992, affirming the district court's

apportionment of fault (A-47); the decision filed by the

Ninth Circuit on November 20, 1992, affirming the district

court’s award of post-judgment interest (A-61); and the

Ninth Circuit’s order of February 16, 1993, denying

respondent’s petition for rehearing (A-71).

JURISDICTION OF THE SUPREME COURT

This Petition for Writ of Certiorari seeks review of

the two decisions filed by the Ninth Circuit Court of Appeals

on November 20, 1992, under the caption Clarence F.

6

Tinsley and Marion Tinsley v. Sea-Land Corporation, No.

91-35762. Sea-Lands’ petition for rehearing from those

decisions was denied on February 16, 1992. Sea-Land’s

Petition for Wnt of Certiorari invokes the jurisdiction of the

Supreme Court under 28 U.S.C. §1254(1).

CONSTITUTIONAL, STATUTORY, AND

OTHER AUTHORITY INVOLVED

Although this action was originally brought under the

Jones Act as well as general maritime law, the district court

did not find that Sea-Land was negligent. The sole basis for

liability is unseaworthiness under general maritime law.

Consequently, the Jones Act is not involved in this petition.

The only statutory authority involved is 28 U.S.C. $1961(a),

captioned "Interest", which provides as follows:

(a) interest shall be allowed on any money

judgment in a civil case recovered in a district

court. Execution therefor may be levied by the

marshal, in any case where, by the law of the

State in which such court is held, execution

may be levied for interest on judgments

recovered in the courts of the State. Such

interest shall be calculated from the date of

the entry of the judgment, at a rate equal to

7

the coupon issue yield equivalent (as

determined by the Secretary of the Treasury)

of the average weekly accepted auction price

for the last auction of fifty-two week United

States Treasury bills settled immediately prior

to the date of the judgment. The Director of

the Administrative Office of the United States

Courts shall distribute notice of that rate and

any changes in it to all Federal judges.

(emphasis added)

STATEMENT OF THE CASE

I.

INTRODUCTION

Tinsley’s injury occurred while the vessel

GALVESTON was transporting refrigerated containers on

deck from Kodiak, Alaska, to Tacoma, Washington. The

containers were stowed three tiers high at Hatch No.4.

Tinsley fell while attempting to read the temperature gauge

on a third-tier container. Respondents alleged that the

GALVESTON was unseaworthy, and Sea-Land was

negligent, in that there was no catwalk affixed to the

stacking frame supporting the third-tier containers at Hatch

8

No.4. Sea-Land contended that Tinsley’s injuries were

caused solely by his long-standing neglect of his duties as

chief mate.

Il.

FACTUAL BACKGROUND

A. Tinsley’s background and experience. - Tinsley

was a seaman with approximately 40 years’ experience. He

was the chief mate on the GALVESTON at the time of his

injury, and had occupied that position for several years.

B. The stowage __of containers _on___the

GALVESTON. - The GALVESTON was employed year-

around in the transportation of refrigerated containers

between Tacoma and Kodiak. The containers were stowed

on deck in tiers. The first tier was loaded directly onto the

hatch covers. Portable stacking frames were placed across

the top of the first tier, with separate stacking frames for

each hatch. The second tier of containers was loaded into

the stacking frames. Containers were not usually stowed at

9

the third tier of Hatch No. 4. However, there were a few

voyages every summer when containers would be stowed at

that location. At such times the third-tier containers were

loaded onto portable stacking frames in the same manner as

the second tier containers. Catwalks were welded onto the

stacking frames used for the second tier containers, but not

the stacking frame used for third-tier containers at Hatch

No.4. This was the basis for the trial court’s finding of

unseaworthiness.

os Tinsley’s ability to anticipate the unseaworthy

condition. - Tinsley testified that he had climbed the third-

tier containers at Hatch No. 4 "hundreds of times" before his

injury, and knew before the start of each year that there

would be a few voyages every summer when the vessel

would carry third-tier containers at Hatch No. 4.

D. Tinsley’s responsibility for safety. - As chief

mate, Tinsley was the officer who was assigned responsibility

for the safety of working conditions on deck and in

10

connection with the ship’s cargo. He was the officer upon

whom Sea Land relied to correct dangerous conditions

aboard ship or report them so that they could be corrected

by shore-side personnel.

E. The circumstances of Tinsley’s injury. -

Tinsley’s purpose in climbing to the third-tier containers was

to read the temperature gauges at the end of each container.

Ladders were built onto the ends of each container. Tinsley’s

method was to climb the second-tier container ladder, reach

around the stacking frame, and climb onto the third-tier

container ladder. He slipped and fell while reaching around

the stacking frame to the third-tier container ladder at Hatch

No. 4.

F. Tinsley’s__ ability to have avoided the

unseaworthy condition. - It was not necessary for Tinsley to

read the temperatures of the third-tier containers. While

containers on the first and second tiers were frequently

stuffed with chilled rather than hard-frozen cargoes, which

~

11

had to be monitored closely and maintained near the 32-

degree mark, the third-tier containers were stuffed with

hard-frozen cargoes. Those cargoes remained hard-frozen

without being monitored on the three-day voyage from

Kodiak to Tacoma. Sea-Land deliberately stowed the third-

tier locations with hard-frozen containers for the specific

reason that they did not have to be monitored. Tinsley

knew of that practice because it was customary, and because

he was given a stowage plan at the beginning of each voyage

which showed the location and temperature requirements of

every container on the vessel.

Moreover, Sea-Land had distributed a safety directive

to all of its crewmen which stated that "Whenever

circumstances (ie, heavy weather) prohibit the normal

reading of operating reefers an entry is to be made in the

remarks section of the deck log indicating the time and

’Reading-Recording Reefer Temperatures not possible due

to .”" There was conflicting testimony as to whether

12

the directive was triggered by the stowage of containers at

third-tier locations away from catwalks. However, it is

undisputed that Tinsley ignored the directive on the occasion

of his injury and had never attempted to inquire as to its

meaning. It is also undisputed that Tinsley had invoked the

directive on prior occasions when the containers were

"stowed third tier - no catwalk attached impossible to read

when vessel rolling."

G. The means available to read the container

temperatures safely. - Inasmuch as Tinsley chose to read the

third-tier containers, there were portable ladders and

temporary catwalks which he could have used to reach them.

Although there was conflicting testimony as to whether such

methods were practical, it was undisputed that they are

customarily used throughout the American merchant marine

to access higher level containers. At the time of trial Sea-

Land was the only American carrier to provide catwalks on

its vessels.

13

H. Tinsley’s failure to report the dangerous

condition. - If Tinsley felt that it was necessary to read the

third-tier containers, and that portable ladders and stagings

were inadequate, he had the duty as chief safety officer to

report that fact to Sea-Land. Sea-Land required monthly

safety meetings to be held on all of its vessels for the

specific purpose of enabling the seamen to report conditions

on the vessels which they considered dangerous. Tinsley was

the officer responsible for conducting the safety meetings on

the GALVESTON, keeping records of all matters reported

at those meetings, and sending copies of the records to Sea-

Land’s shoreside managers so that they could monitor

compliance with safety requirements. Yet neither Tinsley

nor anyone else, on the GALVESTON or any comparable

Sea-Land vessel, ever reported that the lack of third-tier

catwalks at Hatch No. 4 created a dangerous condition.

I. Sea-Land’s reliance on Tinsley to report the

unseaworthy condition. - Tinsley admitted that if catwalks

4

were to be welded onto a stacking frame for use at Hatch

No. 4, the welding would have had to be done by shoreside

personnel. However, the danger created by the absence of

a third-tier catwalk could not have been appreciated by Sea-

Land’s shoreside managers in the absence of a report from

Tinsley. The Ninth Circuit found in its Memorandum

Decision of 1990, which was decided by a different panel

than the decision under review, that "Sea-Land’s

management undoubtedly knew catwalks were not installed

at each level of all reefer stacks, but that fact alone tells us

little. The crucial question is whether the absence of a

catwalk at Hatch #4 should have been perceived by

Tinsley’s superiors as an obvious danger...The danger here

was obvious only to those initiated in the rites of reefer

climbing." Memorandum Decision of October 29, 1990, p.12

(emphasis in the original). It was undisputed that Sea-Land’s

managers had no independent basis for appreciating the

dangerous condition created by the lack of third-tier

a

15

catwalks. It had never been reported to them as the cause

of an injury or a dangerous condition. Thus, Sea-Land was

necessarily dependant upon Tinsley to request the welding

of catwalks or other measures if Tinsley believed that the

condition was dangerous.

is Sea-Land’s ability to correct the unseaworthy

condition. -The Ninth Circuit also found in its 1990 decision

that "the defect in the ship was rectifiable; plaintiff was not

confronted with a general seafaring risk of the kind courts

have excused seamen from reporting - such as having to go

on dec! during a violent sea." Memorandum Decision of

October 29, 1990, p.11. Tinsley himself testified that if the

dangerous condition had been reported, catwalks could have

been used at the third tier of Hatch No. 4 as easily as at

other locations on the vessel. It would also have been

feasible for Sea-Land to instruct Tinsley not to monitor the

third-tier temperature gauges, since the third-tier containers

lo

were hard-frozen. Either of those measures would have

prevented Tinsley’s injury.

REASONS FOR GRANTING THE WRIT.

I.

THE NINTH CIRCUIT'S DECISION CONFLICTS

WITH THE SUPREME COURT’S POLICY OF

PROTECTING SEAMEN FROM _ UNSAFE

WORKING CONDITIONS ABOARD SHIP.

A. Standard of Review. - There is no dispute as

to the nature of Tinsley’s duties as chief mate, the manner

in which his injury occurred, or the fact that Tinsley made

no attempt to avoid the allegedly dangerous condition or

complained that it was dangerous until he filed suit. Sea-

Land contends that the District Court and the Court of

Appeals applied an incorrect legal standard to those

undisputed facts. This is an issue of law, subject to de novo

review. United States v. Singer Manufacturing Co., 374 U.S.

174 (1974); United States v. Parke, Davis and Co., 362 U.S.

29, 44-45 (1960), later app. 365 U.S. 125 (1961).

pemee Crees vee aa

17

B. The law of unseaworthiness must account for

the means which the shipowner has to make the vessel

seaworthy. - In a series of cases beginning with Mahnich v.

Southern _S. S. Company, 321 U.S. 96 (1944), and

culminating in Mitchell v. Trawler Racer, Inc., 362 U.S. 539

(1960), the Supreme Court created a no-fault cause of action

for seamen injured by conditions on the vessel which are

unseaworthy in that they are not reasonably safe for their

intended use. However, the duty to provide a seaworthy

vessel cannot be considered in a vacuum. In order for that

duty to achieve its social purpose, it is necessary to enforce

the duty in a manner which helps to prevent the seamen

from being injured in the first place. It is therefore necessary

to recognize the responsibility that the ship’s officers have

for exercising the shipowner’s duty on the vessel, and to

adopt rules which prevent them from profiting from their

neglect of their duties. In the present case it was purely

fortuitous that the unseaworthy condition injured Tinsley and

18

not an ordinary seaman under his authority. If the Ninth

Circuit’s decision is allowed to stand, ordinary seamen will

be put at increased risk of injury from the negligence of

their officers.

ad As between Sea-Land and Tinsley, Tinsley was

solely responsible for his injuries. - Shipowners like Sea-

Land are complex organizations which necessarily contain

divisions between persons who work on the ship and others

with managerial authority who work ashore. The ship’s

. Officers are the persons through whom the shipowner’s

authority and responsibilities are exercised on the vessel. At

the same time, they are the means by which information

about conditions on the vessel can be passed back to the

shore-side decision-makers. This function of ship’s officers

was placed before the courts below by the testimony of

Captain Prindiville, who was fleet manager for Sea-Land’s

West Coast operations. Captain Prindiville gave undisputed

testimony that he relied on Tinsley because:

)

19

Chief mate primarily is the man in charge of

the cargo operation. I expect him to be my

arms and legs on the scene talking to the

marine manager. I don’t want to have to

carry that cargo on the ship. That’s not the

reason I have a desk and office in Tacoma.

The reason the chief mate is on the ship is to

take care of that scene.

Tinsley’s neglect of his duties would have made Sea-

Land liable if another crewman had been injured by the

condition which Tinsley neglected. However, as between

Sea-Land and Tinsley, Tinsley was solely responsible for his

injuries. Tinsley’s neglect of his duties is what permitted Sea-

Land to believe that the absence of third-tier catwalks was

not a dangerous condition. Inasmuch as other American

carriers customarily use portable ladders, stagings and

harnesses to reach upper-tier containers, Sea-Land’s

shoreside managers could have thought that such methods

were satisfactory for the crew members on the

GALVESTON. They could also have thought that the built-

in container ladders were safe to climb, or, in view of the

safety directive and the fact that the third-tier containers

20

were hard-frozen, that crewmembers would have refrained

from reading the third-tier container temperatures if it was

unsafe to do so. Since no one in Sea-Land’s employ had ever

been injured by the absence of third-tier catwalks, or had

ever complained that it created a dangerous condition, the

shoreside managers would have had no reason to think

otherwise in the absence of a report from Tinsley.

D. The legal standard applied by the Ninth

Circuit was inappropriate to Tinsley’s position as the officer

responsible for the condition which caused his injury. - The

record contains specific evidence as to certain steps which

Sea-Land could have taken to avoid or correct the

unseaworthy condition if Tinsley had reported it, such as

installing a catwalk or instructing Tinsley not to read the

third-tier container gauges. For example, Tinsley himself

testified that a catwalk could have been installed at the

third-tier of Hatch No. 4 as easily as at other locations on

the vessel. Other witnesses testified that Sea-Land was

21

constantly rewelding and replacing catwalks at other

locations on the vessel, and could have done the same at

Hatch No.4. There was also specific testimony from Captain

Prindiville, Sea-Land’s manager of fleet operations, that

safety was a paramount concern on Sea-Land vessels and

that Tinsley was not required to read the third-tier container

temperatures if he felt that it was dangerous to do so.

Captain Prindiville testified further that Sea-Land followed

a deliberate policy of placing the hard-frozen containers in

third-tier locations for the specific purpose of relieving the

seamen of the need to climb to those locations. There were

also extensive safety meeting reports which showed that Sea-

Land was very active in responding to safety viiieiei

Although some of the conditions reflected in those reports

were relatively trivial, others them involved structural

changes of a magnitude comparable to the welding of a

catwalk onto a stacking frame. There was no evidence that

ae

Sea-Land had ever knowingly required seamen to work

under conditions known to be unseaworthy.

Nevertheless, the Ninth Circuit affirmed the district

court’s decision simply because the record contained some

speculative testimony that Sea-Land might not have installed

a catwalk or abandoned container readings if the

unseaworthy condition had been reported to them. The

Ninth Circuit stated that "because Sea-Land bore the burden

of proof and there was no direct evidence that Sea-Land

would have installed third-tier catwalks or abandoned

temperature reading of third-tier reefers, the district court’s

finding that plaintiffs failure to report the dangerous

condition was no more than ten percent of the cause of his

injuries was not clearly erroneous." Memorandum decision

of November 20, 1992, p.7.

Sea-Land will not ask this court to reweigh the

evidence considered by the trial court, except to the extent

of recognizing that the Ninth Circuit held Sea-Land to a

ie tg a i

23

standard that was impossible under the circumstances and

legally inappropriate for a ship’s officer like Tinsley. The

liability of Sea-Land should not turn on speculative

testimony about what would have been done in a situation

which never arose, particularly when it was the inaction of

the plaintiff himself which prevented the situation from

arising. It was Tinsley’s own failure to report the

unseaworthy condition that caused the lack of “direct

evidence" cited by the Ninth Circuit. Sea-Land contends that

since it produced undisputed evidence of measures which

could have been taken to avoid Tinsley’s injury, and Tinsley

produced no "direct evidence" that Sea-Land would have

refused to correct the condition if it had been reported to

them, the Ninth Circuit erred as a matter of law in affirming

the district court’s judgment. While the standard applied by

the Ninth Circuit would have been appropriate for suits by

ordinary seaman, who depend upon the ship’s officers for

their safety, it is not appropriate when applied to the officer

24

who was responsible for the condition of which he

complains.

In addressing Sea-Land’s argument that Tinsley’s

position should subject his claim to a higher standard of

scrutiny, the Ninth Circuit distinguished Skandalis v. M/V

Galini, 1974 AMC 1671 (E.D.Va.1974), in which a second

mate was barred from recovery because he failed to order

other seamen to assist him in a shipboard task which caused

his injury. The Ninth Circuit stated that "Plaintiff's authority

is relevant only to the extent it might have been employed

to avert the danger." Mem. Decision of November 20, 1992,

p. 8. The Ninth Circuit failed to recognize that Sea-Land’s

shoreside managers ute not in a position to recognize the

hazard created by the lack of third-tier catwalks, and placed

officers like Tinsley on the vessel for the specific purpose of

informing them. Because of Tinsley’s experience, expertise,

and duties on the vessel, Sea-Land’s shoreside managers

relied upon his judgment as to which conditions were safe.

wih RE Lj Pre Pols Sab Sb:

25

Thus, Tinsley’s authority was relevant not only to avert

danger during shipboard operations as in Skandalis v. Galini

but also to set in motion the process of correcting

unseaworthy conditions which Sea-Land’s managers could

not identify from their shoreside offices. Because the Ninth

Circuit’s decision failed to recognize the significance of

Tinsley’s position on the vessel, and applied a standard of

review that is inappropriate to officers such as Tinsley, the

decision must be reversed.

E. This Court has recognized on other occasions

that the ship’s officers are subject to a higher standard of

conduct than ordinary seamen. - The paternalistic attitude

which the courts have adopted toward ordinary seamen

depends considerably upon the extent to which they are

subject to the authority of the ship’s officers. In Cortes v.

Baltimore Insular Line, Inc., 287 U.S. 367 (1932), this Court

held that ordinary seamen are subject to different limitations

on recovery than land-based workers because:

26

The conditions at sea differ widely from those

on land, and the diversity of conditions breeds

diversity of duties... The master’s authority

is quite despotic, and sometimes roughly

exercised, and the conveniences of a ship out

upon the ocean are necessarily narrow and

limited. (Citations omitted). 287 U.S. at 377.

The nature of shipboard authority was also a basis for

the holding in Socony-Vacuum Oil Co., Inc. v. Smith, 305

US. 424 (1939), that the assumption of risk defense which

had been recognized in civil law was not applicable to

actions by ordinary seamen under the Jones Act. The Court

stated that ordinary seamen are subject to different policies

than land-based workers because:

The seaman, while on his vessel, is subject to

the rigorous discipline of the sea and has little

opportunity to appeal to the protection from

abuse of power which the law makes readily

available to the landsman. His complaints to

superior Officers of unsafe working conditions

not infrequently provoke harsh treatment. 305

US. at 430 (emphasis added)

In the present case, Tinsley was the superior officer.

His authority on the vessel differentiates him from ordinary

seamen and subjects him to a higher standard of conduct.

27

For example, it is stated in 1 Norris, The Law Of Seamen

(4th ed. 1985), pp. 612-613, that:

While an isolated incident of disobedience not

of an aggravated character in a crewman may

receive indulgence in the sense that a dis-

charge would not be permitted, ships’ officers

are treated differently. Their higher position,

greater compensation and the power and

authority given to them to command others

require a correspondingly higher degree of

responsibility.(emphasis added)

By the same token, Tinsley’s long acquiescence in the

condition which he now complains of should not be indulged

in the same manner that it would be indulged on the part of

an ordinary seaman. The Supreme Court stated in Cortes

that:

Out of this relation of dependence and

submission there emergences for the stronger

party a corresponding standard or obligation

of fostering protection. 287 U.S. at 377

(emphasis added).

This “obligation of fostering protection" is the

obligation which Tinsley breached.

28

Il.

THE NINTH CIRCUITS DECISION CONFLICTS

WITH THOSE OF OTHER COURTS WHICH

HAVE HELD THAT A SHIP’S OFFICER CANNOT

RECOVER FOR INJURIES CAUSED BY HIS

NEGLECT OF THE DUTIES OF HIS OFFICE.

In Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir.

1974), a chief engineer slipped on an oily engine rail. Like

Tinsley, the chief engineer was responsible for safety in the

area of the ship where he was working. The district court

instructed the jury that the chief engineer could not recover

if the injury was caused by his failure to exercise that

responsibility. The court of appeals held that the jury

instruction was proper and affirmed a judgment in favor of

the shipowner. Comparing the case before it with Caddy v.

Texaco, 292 N.E. 2d 348 (Mass. 1973), in which the seaman

was allowed to recover, the Court of Appeals stated that:

[In Caddy], a seaman was instructed to clean

up oil and do some other work...here plaintiff

was the one to tell himself... there must be a

point where one in charge cannot give himself

the wrong instruction and recover from the

ship. 507 F.2d at 1323, n.2 (emphasis added).

ncn hs Caan sas he Bo

29

Like Peymann, Tinsley "was the one to tell himself.”

If an officer is injured while attempting to repair or alleviate

an unsafe condition within the scope of his duties, the

officer’s recovery can be reduced for contributory negligence.

However, the officer’s recovery should be barred altogether

if he ignores a condition which could have been corrected or

avoided. That is exactly what Tinsley did.

The distinction between attempting to correct a

condition and ignoring it is illustrated by pairs of cases in the

Second and Ninth Circuits. The Second Circuit cases are

Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d Cir. 1952),

and Dixon v. United States, 219 F.2d 10 (2d Cir. 1955).

Walker involved a steel filing cabinet on which the drawer

catches were in disrepair. The master ignored the condition,

like Tinsley, and was injured when the cabinet opened

suddenly as the ship rolled. The district court sent the case

to the jury on the ground that the master’s negligence should

reduce his recovery according to the rule of comparative

30

fault. The court of appeals reversed and remanded for a

new trial on the ground that the jury had been instructed

improperly as to the master’s duties. 193 F.2d at 774. The

court of appeals held that:

In the case at bar, since the plaintiff was

master of the ship, he fell within this [primary

duty} doctrine. . . Thus, if the plaintiff failed to

repair the catches, although he was able to do

so, his failure was not only ‘contributory

negligence’ in the first sense, but also a breach

of his duty to the defendant which barred his

recovery absolutely.

193 F.2d at 774.

Dixon involved a ship’s ladder on which the bottom

rungs were damaged. The chief mate discovered the

damage and reported it, unlike Tinsley. Repairs were

undertaken the following day. The master subsequently

directed the chief mate to verify that the ladder had been

repaired. Instead of inspecting the ladder from the bottom,

and checking each rung before he used it, the chief mate

inspected the ladder from the top down and was injured

when some rungs gave way. The court of appeals ruled that

31

since the chief mate had fulfilled his duty to discover the

defective condition and initiate repairs, his carelessness for

his own safety would not bar his recovery. 219 F.2d at 17.

The court stated that:

Cases such as Walker v. Lykes Bros. S.S. Co.,

_.. are in no way inconsistent with the rule

that assumption of risk is not a defense or

comparable to the situation before us. Those

cases are only instances of the firmly

established rule that an employee may not

recover against his employer for injuries

occasioned by his own neglect of some

independent duty arising out of the employer-

employee relationship .... Such cases are

quite inapposite here. [The chief mate] was

not guilty of any breach of duty to his

employer. 219 F.2d at 16-17.

The relationship between Walker and Dixon finds an

exact parallel in the Ninth Circuit cases of Reinhart v.

United States, 457 F.2d 151 (9th Cir. 1972), and Stanworth

v. American Steam Trawlers, Inc., 523 F.2d 46 (9th Cir.

1975). Reinhart involved a chief mate like Tinsley, whose

responsibilities included the safety of the working conditions

on the vessel. Longshoremen had installed wooden

32

sheathing in the hold to protect the vessel’s hull from being

damaged by the cargo. Portions of the sheathing were

broken when a particular cargo was discharged. As in the

present case, the broken sheathing had to be repaired by

shoreside workers rather than the ship’s crew. Like Tinsley,

the chief mate took no precautionary measures to eliminate

the danger posed by the places where the sheathing was

broken. He went into the hold to inspect rat traps required

by government regulations, and was injured when he fell

through a hole in the sheathing. The court of appeals

affirmed the district court’s holding that:

[The Chief Mate] failed to fulfill his

responsibilities as the vessel’s safety officer

and specifically failed to properly inspect the

sheathing where his accident occurred. If he

had properly performed an inspection and

corrected the condition, as it was his duty to

do, no accident would have occurred. The

Chief Officer’s faults in these respects

constitute a breach of his contractual duty to

defendant to properly perform his duties, and

bar him from any recovery under the theory

of unseaworthiness (citing Walker v. Lykes

Bros.). 457 F.2d at 153, n. 2 (citing the district

court’s decision).

33

Stanworth involved a chief mate who discovered that

diesel oil had spilled onto the deck of a fishing trawler, and

ordered the chief engineer to clean it up. He later inspected

the spill area and slipped on a patch of oil -which had been

missed. In holding that the chief mate was not barred from

recovering for his injuries, the court of appeals stated that:

In Reinhart . . . the accident was due to some

broken and damaged sheathing about which

Reinhart was aware. Although as Chief Mate

he had a duty to the owner to have the

sheathing in safe condition, he failed to take

any action. In the present case, Stanworth

had not only directed the unsafe condition to

be eliminated, he was in the process of

inspecting the clean-up activities when he was

injured. Rather than in breach of his safety

maintenance duty (as was Reinhart), he was in

the process of carrying out that responsibility

when the accident occurred. 523 F.2d at 47,

citing Dixon, 219 F.2d at 11-12, 16, 17.

Tinsley was the opposite of Stanworth, in that he

made no attempt to avoid or correct any danger created by

the stowage of containers on a stacking frame which lacked

a built-in catwalk. He was instead like Reinhart, Walker, and

34

Peymann, in that he was injured by a condition which he had

ignored.

In the recent case of Bulla v. Sea-Land Service, Inc.,

No. 91-3204 (E.D.Pa.1993), a chief mate was injured in

circumstances very similar to those of the present case. The

chief mate had used an aluminum ladder to climb to the

temperature gauge on a second-tier container. He then

attempted to reach the gauges on adjacent containers by

using lashings and other handholds to move laterally across

the containers instead of using the ladder. He fell while

doing so, and sued to recover for the resulting injuries. The

court denied the chief mate’s claims because "The plaintiff

had a duty to take the temperatures in a safe way, and there

is no evidence that anything the defendant did precluded his

doing so." The legal standard applied by the court may not

have been appropriate for an ordinary seaman, but it was

certainly appropriate for the chief mate. Similarly, in Maersk

Line, Ltd. v. Bernard, No. 91-3861 (C.D.Ca.1992), a chief

35

cook filed suit against the shipowner for injuries which he

received when a box of food fell from a shelf in the vessel’s

freezer because it had been negligently stowed. The chief

cook’s position in the food storage area was analogous to

that of Tinsley on deck, in that he was the officer in charge

of safe stowage in the freezer. The court dismissed the chief

cook’s claim because his injuries were caused solely by his

breach of the duties of his office.

In summary, if the absence of third-tier catwalks was

indeed a dangerous condition, the danger was never

communicated to the shoreside managers who could have

ordered the condition to be corrected. The reason for this

lack of notice is that Tinsley failed to fulfill his duty as chief

mate. Moreover, Tinsley’s breach of duty was an egregious

pattern of continuous neglect over a substantial period of

time involving hundreds of container readings. It is true that

the shipowner’s duties are non-delegable in the sense that

the shipowner cannot hide behind the fault of an officer

36

when an action is brought by another seaman. However, the

officer should not be allowed to recover when he acquiesces

in a condition which the shipowner relied upon him to

correct or report, and complains that the condition is

dangerous only when he commences a lawsuit. In failing to

recognize the higher standard applicable because of Tinsley’s

status as the officer on the ship in charge of the condition

which caused his injury, the Ninth Circuit erred as a matter

of law.

Il.

THE NINTH CIRCUIT ERRED IN AFFIRMING

THE AWARD OF POST-JUDGMENT INTEREST

FROM A TIME WHEN SEA-LAND’S LIABILITY

HAD NOT YET BEEN ESTABLISHED.

Post-judgment interest is governed by 28 U.S.C.

§1961(a), and does not accrue under $1961(a) from the date

of a judgment which is found to be legally insufficient.

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S.

827, 110 S. Ct. 1570, 108 L.Ed.2d 842 (1990). It accrues

instead from the date of the judgment on remand. Id. The

37

Ninth Circuit acted contrary to the dictates of Bonjorno in

affirming the award of post-judgment interest from the date

of the District Court’s original judgment.

In Bonjorno, the Supreme Court considered the

accrual date of interest on a judgment which was later

modified. The Court held that post-judgment interest does

not begin to accrue until the amount of damages is finally

determined. The Court stated:

[T]he purpose of post-judgment interest is to

compensate the successful plaintiff for being

deprived of compensation for the loss from

the time between ascertainment _of the

damages and the payment by the defendant.

Where_the judgment on damages was not

supported by the evidence, the damages have

not been "ascertained" in any meaningful way.

It would be counterintuitive, to say the least,

to believe that Congress intended post-

judgment interest to be calculated from such

a judgment.

110 S. Ct. at 1576 (emphasis added, citations omitted).

The Ninth Circuit ruled that the accrual of post-

judgment interest from the original judgment was consistent

with Bonjorno because "the district court’s determination of

38

damages was not challenged...." Slip opinion, p. 13576

(emphasis added). In other words, the Ninth Circuit

construed Bonjorno to apply only to the amount of recovery,

and not liability.

Sea-Land submits that while the specific facts of

Bonjormno may have involved the quantum of damages, the

holding in Bonjorno must be understood to refer to the legal

obligation of the defendant to compensate the plaintiff. That

obligation encompasses both liability and amount. The

defendant has no obligation to compensate the plaintiff, and

therefore no obligation to pay post-judgment interest, if the

plaintiff's damages are not ascertained. Equally, the

defendant has no obligation to compensate the plaintiff, and

no obligation to pay post-judgment interest, if the plaintiff's

damages resulted from a cause for which the defendant is

not liable. As the Supreme Court stated in Bonjorno, "It

would be counterintuitive, to say the least," to believe that

while Congress did not intend post-judgment interest to run

39

from a judgment in which the amount of recovery was not

ascertained, it intended post-judgment interest to run from

a judgment in which liability was not ascertained. See 459

US. at 835-36.

Although the Ninth Circuit affirmed as not clearly

erroneous the district court’s judgment on remand that

liability should be apportioned 90% to Sea-Land, that does

not mean that liability was ascertained at the time of the

original judgment. The Ninth Circuit’s affirmation of the

judgment on remand cannot apply retroactively to a time

before that judgment was entered.

Sea-Land contended on remand that it could have

avoided Tinsley’s injury entirely by instructing Tinsley not to

read the third-tier containers if Tinsley had reported the

dangerous condition. Sea-Land’s West Coast fleet manager

gave undisputed testimony at trial that whenever the vessel

had containers at locations where there were no catwalks,

care was taken to place the hard-frozen loads in those

40

locations. He testified specifically that the reason for doing

- so was that the hard-frozen containers did not have to be

monitored. That testimony would have been sufficient to

sustain as not clearly erroneous a finding that Tinsley’s

injuries were caused solely by his own negligence, and that

Tinsley was not entitled to recover.

Sea-Land also contended that it could have avoided

Tinsley’s injury by prewelding a catwalk to a third-tier

stacking frame for use on the few voyages when containers

were stowed on the third-tier at Hatch No. 4. In support of

that contention, Tinsley himself testified that the vessel had

third-tier catwalks at Hatches 8 and 9, and a catwalk could

just as easily have been attached at the third tier of Hatch

No. 4. Tinsley’s testimony was supported by that of other

witnesses who said that catwalks were constantly taken off,

repaired, and replaced on the vessel, and that a catwalk

could have been welded to a stacking frame for use between

the second and third tiers at Hatch No. 4 as readily as at

41

other locations on the vessel. The record also contained

substantial evidence of safety meetings and related actions

demonstrating Sea-Land’s responsiveness to safety concerns.

The oral testimony and safety meeting records would

likewise have been sufficient to sustain as not clearly

erroneous a finding that Tinsley’s failure to report the

dangerous condition was the sole cause of his injuries.

In summary, the District Court found in its original

judgment that Tinsley’s failure to report the danger which he

perceived from the absence of third-tier catwalks was not

negligent. As a result, the District Court did not consider

the extent to which Tinsley’s injuries may have been caused

by his failure to report the perceived danger. The Ninth

Circuit reversed the District Court and held that Tinsley was

negligent in failing to report the perceived danger. The

Ninth Circuit concluded specifically that while Sea-Land

knew of the condition, it would not have appreciated the

danger created thereby in the absence of notice from

42

Tinsley. The Ninth Circuit instructed the District Court to

consider on remand the extent to which Tinsley’s injuries

were caused by his failure to inform Sea-Land of the danger

which he perceived. Looking at the facts from that new

point of view, the District Court might well have decided

that Tinsley’s failure to report the perceived danger was the

sole cause of his injuries, and stood as a complete bar to

recovery. Such a finding would have been supported by the

evidence. The fact that the District Court chose to apportion

causation to Sea-Land, and the District Court’s decision was

later affirmed as not clearly erroneous, cannot be used

retroactively to conciude that Sea-Land’s liability was

ascertained at the time of the original judgment.

43

CONCLUSION

For the foregoing reasons, review by this Court is

appropriate and certiorari should be granted.

Respectfully submitted,

JEROME C. SCOWCROFT

Counsel of Record

Of SCHWABE, WiLiIAMSON,

FERGUSON & BURDELL

Attorneys for Petitioner