Petition for Writ of Certiorari — Roper v. United States

INDEX

Page

I. Opinion BELOw

II. JURISDICTION -

III. QuEsTION PRESENTED

IV. STATEMENT __

> ,Ȥ NW HO =

V. REASONS FOR GRANTING Writ

VI. SUMMARY AND CONCLUSION 10

APPENDIX, Lower Court Opinion (Separator Page )

CITATIONS

Lawlor v. Socony Vacuum Oil Co.,

275 F. 2d 599, nets Cir. 1960), cert. den

363 U. S. 844. De Shes Poneieantans BE _ 6,8, 10

Roper v. United States, et als °

(i) MEP oe ee ee

West V. United States

361 U.S. 118, 80 S. Ct. 189, 4

i, See Se rs oe oe ee ee 6,10

The Tungus v. Skovgaard,

358 US 588 (1959).

Rogers v. United States Lines, |

mer 406 We, Feet ee

Pope & Talbot, Inc. v. Hawn

346 US 406 (1953). ng 10

IN THE

DUpTeMe GOUT Of the United States

OCTOBER TERM, 1960

WILLIAM J. ROPER,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

CONTINENTAL GRAIN COMPANY,

Respondent-Impleaded

and

JOHN W. McGRATH CORPORATION and

ARROW STEAMSHIP AGENCY, INC.,

t/a ATLANTIC AND GULF GRAIN STEVEDORING

ASSOCIATION, .

Respondent-Impleaded,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

TO THE HONORABLES, THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Petitioner William J. Roper, prays that a Writ of

Certiorari issue to review the Judgment of the United

States Court of Appeals for the Fourth Circuit in Case

No. 7986, entered therein on August 30, 1960. This Judg-

ment affirmed a Final Judgment of the United States Dis-

trict Court for the Eastern District of Virginia at Norfolk,

dismissing Petitioner's Libel in Admiralty.

I. OPINION BELOW

The Opinion of the United States Court of Appeals

for the Fourth Circuit is reported at 282 F 2d -

under the style of William J. Roper, Libellant-Appellant

versus United States of America, Respondent-Appellee, et

als. This Opinion is copied in the Appendix to this Petition

on page 1, together with the dissenting Opinion of The

Honorable Simon E. Sobeloff Chief Judge of the Court.

Ii. JURISDICTION

The Judgment of the Court of Appeals for the Fourth

Circuit was entered on August 30th, 1960. The Juris-

diction of this Court is anvoked under 28 U. S. C., Sec-

tion 1254. (1)

III. QUESTION PRESENTED

1. The petitioner Roper, a longshoreman gang fore-

man was injured at Norfolk, Virginia, when a sfeel strap

holding a block on a grain chute from which a line was

running to a detachable scoop or grain plow collecting

grain from the bottom of the hold of the vessel HARRY

LANE broke, striking Roper in his face. The HARRY

LANE was owned by the Government and had been used

to store grain while at its ship anchorage in the James

River. The grain was sold by the Government to Con-

tinental Grain Company and the Government had the

vessel towed in navigable waters down the James River

3

and through the Chesapeake Bay to discharge the grain to

a grain elevator while the vessel was lying in navigable

waters at the Norfolk Grain Elevator Pier. The Govern-

ment had never relinquished its control over the vessel to

anyone, but had maintained a Master and crew aboard

to aid in navigation for the voyage and during unloading

operations. The vessel was engaged in a purely com-

mercial transaction at the time Roper was injured. The

grain was discharged by lowering a grain chute through

which an endless belt ran from the elevator into the holds

of the ship carrying the grain up from the hold into the

elevator at the pier. The grain chute had a detachable

scoop or plow which was being used in the hold by long-

shoreman Roper, to which was attached a line running

through a block on the end of the marine leg or grain

chute which pulled the scoop over the bottom of the hold

towards the mouth of the chute scooping up grain residue

thereon. The District Court held that the vessel was

withdrawn from navigation at the time Roper was injured

and did not owe Roper the warranty of seaworthiness. The

two Judge majority of three of the Court of Appeals for

the Fourth Circuit affirmed, with the Chief Judge dis-

senting.

The ultimate question presented by the decision of

the Cowt of Appeals is whether or not a shipowner owes

a longshoreman the warranty of seaworthiness for a vessel

formerly deactivated and withdrawn from navigation when

the longshoreman is injured after the vessel is placed into

navigation for commercial purposes, without relinquishing

control of the vessel to anyone but discharging her cargo

while lying in navigable water, although her motive power

was “moth-balled” at the time.

2. The subsidiary question involved along with the

determination of the ultimate question is whether -or not

4

the shipowner owes the warranty of seaworthiness for

equipment attached to shore on one end but resting aboard

ship on the other end and used by the vessel in unloading

and discharging the vessel's cargo.

IV. STATEMENT

Roper, a longshoreman, filed his libel against the

United States as owner of the vessel HARRY LANE pur-

suant to Title 46, U. S. C. A., Sec. 741 et. seq., known as

the Suits in Admiralty Act, for his personal injuries sus-

tained. Previously the HARRY LANE stored with a cargo

of Government grain had been laid up in the James River

Anchorage, her motive power “mothballed” and with-

drawn from navigation . The Commodity Credit Corpora-

tion sold the grain to the Continental Grain Company

which in turn contracted with Roper’s employer, Atlantic

and Gulf Stevedores for stevedore services to discharge

the grain to Continental’s Grain Elevator at Norfolk. For

the voyage from the James River Anchorage to Norfolk,

approximately 20 miles, the Government employed a

Master with licenses unlimited for all oceans together with

a crew of six to assist in navigation of the vessel while

being towed by a tug to Norfolk, down the navigable

waters of the James River through the Chesapeake Bay to

the Norfolk Grain Pier. The voyage was made without

incident and the vessel was made fast to the pier. A grain

chute or marine leg, the universal modern method of dis-

charging grain was used, one end of which was attached

to the elevator and the other end laid into the hold of the

ship through which an endless belt ran carrying the grain

up into the elevator. Since July, 1956 the Government had

unloaded 28 of its grain ships with this equipment at

Norfolk. At the end of the chute a detachable scoop or

plow was provided to which a line ran through a block

5

held by a steel strap, this scoop being detached and let

out, thereafter being pulled by the leg’s machinery scoop-

ing the residue of grain on the bottom of the hold to the

mouth of the leg. While using the detachable scoop scrap-

ing the bottom of the ship's hold, the steel strap holding

the block broke, striking Roper in the face. The block

was admittedly worn out, defective and unsafe allowing

it's wobbling sheave to cut the strap as a result of which

the block flew off. The Master admitted it was his duty to

look out for safety on the ship. He duly noted Roper’s

injuries in the ship's log book. The duties of the Master and

seamen required them to tend the ship’s lines, place lights

and aid in the navigation of the vessel. The Master stated

that Roper while assisting in the discharge of the grain was

doing “one of the things that historically was the job of

seamen up until the eighteenth century.” The vessel was at

her dock in navigable waters solely for the purpose of a

commercial transaction, discharging her cargo and in no

sense were any repairs being done or any other activities

except discharging cargo. The Government retained com-

plete control over the vessel at all times during the un-

loading, the ship’s crew tending lines and other duties.

There was no contention below of relinquishment of con-

trol.

The Master admitted that no inspection whatsoever

was ever made of the grain discharging equipment, the

grain scoop or the blocks or machinery of the marine leg.

Ropers employer, Atlantic and Gulf Stevedores, had

brought the marine leg and grain discharging equipment

aboard the vessel solely to perform their stevedoring serv-

ices in unloading the same. The District Court held it was

clear that the vessel was engaged in a commercial venture

lying in navigable waters with Roper performing longshore

duties and otherwise entitled to the warranty of sea-

worthiness but.nevertheless held that the United States

had withdrawn the vessel from navigation and by apply-

ing West v. United States, 361 U. S. 118, 80 S. Ct. 189,

4 L.Ed. 2d 161, the warranty is not owed Roper. A

majority of two of a three Judge Court of Appeals affirmed

holding that West was applicable, with the Chief Judge

dissenting, contending that West was inapplicable and that

the warranty extended to Roper, pointing out a plain con-

flict in principle with the West decision of this Court and

with the decision of the Second Circuit in Lawlor vs.

Socony Vacuum Oil Co., 275 F. 2d 599, (2d Cir. 1960),

cert. den. 363 U. S. 844.

ion V. REASONS FOR GRANTING THE WRIT

1. There is a clear and direct conflict in principle

between the decision of the Court of Appeals in this action

and the decision of the Supreme Court of the United

States in West v. United States, 361 U. S. 118, 80 S. Ct. 189,

4 L.Ed. 2d 161 and with the Second Circuit's decision of

Lawlor vs. Socony Vacuum Oil Co., 275sF. 2d 599, (2d

Cir. ‘1960) cert. den. 363 U. S. 844. In’ West « United

States supra, the Government's vessel previously de-

activated in the mothba!l fleet in the James River was

towed to the shipyard at Philadelphia and turned over to

it for the purposes of overhauling and reactivation, com-

plete control over the vessel being relinquished to the

shipyard. West, a shoreside employee of a repair sub-

contractor was injured during the reactivation work. This

Court held that the voyage to Philadelphia was for the

specific purpose of delivering the vessel to the shipyard

contractor to render her seaworthy, the Government turn-

ing over complete control of the vessel to the shipyard for

such repair purposes and the warranty of seaworthiness

was not owed. Further it was held that the complete over-

haul repairs were not ship’s work and as such required the

vessel to be turned over to the shipyard in order to render

her seaworthy. This Court held that the focus should be

upon the status of the ship at the time, the pattern of re-

pairs and the work to be done to determine whether the

warranty of seaworthiness applied to an injured shore-

based worker. j

The status of the vessel HARRY LANE hefe has no

similarity whatsoever to the status of the MARY AUSTIN

in the West deeision, as is pointed out by Chief Judge

Sobeloff in his dissent below.

Mr. Justice Clark in rendering the Opinion of this

Court in West stated on pages 164, 165 of 4 L. Ed. 2d:

“On the other hand, the vessels involved in the cases

depended upon by petitioners? were, at the time of

the injury, in the hands and under the control of the

owner or charterer and, instead of undergoing gen-

eral repairs, were in active maritime service in the

course of loading or unloadigg cargo pursuant to a

voyage. °°°* But no such situation is present here.

The Mary Austin, as anyone could see, was not in

maritime service. She was undergoing major repairs

and complete renovation, as the petitioner knew.

Furthermore, he took his orders from the contractor,

not the shipowner. He knew who was in control.

This undertaking was not “ship’s work” but a complete

overhaul of such nature, magnitude, and importance

as to require the vessel to be turned over to a ship

repair contractor and docked at its pier for the sole

purpose of making her seaworthy. °°°°It would

appear that the focus should be upon the status of

the ship, the pattern of the repairs, and the extensive

Atlantic Tri..port Co. v. Imbrovek, 234 U. S. 52, 58 L. Ed. 1208, 34 S.

Ct. 733, 51 LRA NS 1157, (1914); International Stevedoring Co. v. Haverty,

272 US 50. 71 L ed 157, 47 S. Ct. 19 (1926); Pope & Talbot Inc. v. Hawn,

346 US 406, 98 L ed 143, 74 S. Ct. 202 (1953); Alaska S. S. Co. v. Petter-

son, 347 US 396, 98 I. ed 798. 74 S. Ct. 601 (1954); Crumady v. The

Joachim Hendrik Fisser, 358 US 423, 3 L ed 2d 413, 79 S. Ct. 445, (1959).

* : 8

nature of the work contracted to be done, rather than

the specific type of work that each of the numerous

shore-based workmen are doing on shipboard at the

moment of injury.°°°”

Chief Judge Sobeloff in his dissent below lays his

finger on the error of the majority in petitioner's case

stating: —

“This was no dead ship. The sterotype does not fit

and will not survive analysis. A phrase, apt enough

to describe an inert vessel] undergoing major repairs

in a shipyard, is completely sdaated to one in

course of discharging cargo — cargo which she has

just transported many miles for delivery precisely as

any other cargo carrier might do. «

It does not matter that before making the journey the

vessel was inactive, or that she might thereafter again

resume inactivity. We find her fully active on the day

with which we are concerned. Unlike a repair-worker

called in to make a vessel fit for service, as in West v.

United States, 361 U. S. 118, (1959), this plaintiff

came aboard to perform. a task rightly called tradi-

tional for seamen. Due to a failure of the equipment,

he met with injury while thus engaged. Does this

not meet the law’s every requirement for a recovery

on the ground of the vessel's unseaworthiness? I

think it does, and recovery should not be denied -

because of the ship's status before the voyage in

question or its expected later status. There is nothing

logically inconsistent or legally incongruous in saying

that the actual conditions at the time of the accident

control, not the past or future.” !

We believe that it is clear that the decision of the

Court of Appeals in this case is wrong and that there is a

direct and clear conflict in principle between that decision

and the decision of this Court in West, supra.

In the Second Circuit decision of Lawlor vs. Socony

9

Vacuum Oil Co., 275 F. 2d 599, (2d Cir. 1960) cert. den.

363 U.S. 844, the vessel was brought to the shipyard for its

annual inspection and overhauling and shoreside worker

Lawlor came aboard and was injured by a defective lad-

der. The Court stated on page 604 of 275 F. 2d:

“We have concluded that the character of the work

to be done by the shipyard, the presence or absence

of a crew performing the customary work of seamen

on a the consequent measure of control or

lack of control by the shipyard over the vessel as a

whole, are the determining factors that rule the de-

cision of this case. Doubtless cases will arise in which

the question of fact relative to the degree of control

exercised respectively by the shipowner and the ship-

yard may be difficult of resolution. But here we have

no conversion of a prisoner of war transport into a

passenger carrier for the families of overseas service

men (Lyon v. United States, 2 Cir., (1959), 265 F 2d

219), nor extensive repairs amounting virtually to the

reconstruction and rebuilding of the vessel (Berge,

supra), nor a wholly deactivated vessel from the

“mothball fleet” (West, supra), nothing in the cate-

gory of major repairs or structural and extensive

changes in the vessel, but only a large number of

relatively small miscellaneous items such as are gen-

erally included in an annual overhaul.”

The Second Circuit held that the warranty of sea-

worthiness extended to Lawlor as there was no measurable

loss of control over the vessel by the owner, the character

of the work was incidental repairs and such as usually

done by seamen and further the continued presence of the

crew aboard performing their customary work. This Court

denied certiorari on this decision in 363 US 844.

We think it clear that the decision of the Court of

Appeals below is in direct conflict in principle with that of

—_*

10

the Second Circuit in Lawlor, supra, and that the decision

- in this case is plainly wrong.

2. The subsidiary question involved with the deter-

mination of the ultimate question is whether or not the

shipowner owes the warranty of seaworthiness for equip-

ment attached to shore on one end but resting aboard

ship on the other end and used by the vessel in unloading

and discharging the vessel's cargo. |

The majority in the decision below while holding that

the warranty of seawurthiness was not owing to Roper

yet they agreed with the District Court’s dicta that the

United States as owner did not warrant the soundness of

the marine leg and its appliances which were shore

attached but*which were also ship attached and used for

discharging cargo. This Court has recently held that the

warranty of seaworthiness to an injured shoreside worker

extended to cover shorebased equipment. The Tungus v.

Skovgaard, 358 US 588 (1959); Rogers v. United States

Lines! 347 US 984. (1954) and Pope & Talbot vs. Hawn,

346 US 406 (1953).

VI. SUMMARY AND CONCLUSION

It is respectfully stated that the decision of the Court

of Appeals for the Fourth Circuit in petitioner's case is in

clear, direct and substantial conflict in principle with the

decision of this Court in West v. United States, 361 US

118, 80 S. Ct. 189, 4 L. Ed. 2d 161 and further conflicts in

principle with the Second Circuit decision in Lawlor v.

Socony Vacuum Oil Company, 275 F 2d 599, (2d Cir.

-1960) cert. den. 363 U. S. 844, making it of utmost

importance that this Court review the decision of the

Court of Appeals in petitioner's case as the same tends to

11

create uncertainty as to the rights of all similar litigants,

further tending to confuse the issues as to the extension

of the warranty of seaworthiness in similar cases. In

addition the lower Court decision is plainly wrong.

Wherefore, petitioner respectfully prays that this

Petition be granted and that a Writ of Certiorari issue,

and that this Honorable Court review and determine

petitioner's rights herein and that the decision of the Court

of Appeals may be reversed.

SwwneEyY H. KELSEY

Attorney for Petitioner Roper

Smwney H. KELsEY

1408 Maritime Tower

Monticello at City Hall Avenue

Norfolk 10, Virginia

UNITED STATES COURT OF APPEALS

FOR THE FORTH CIRCUIT

No. 7986

William J. Roper, Libellant,

Appellant,

versus

United States of America, Respondent-Petitioner;

Continental Grain Company, Respondent-Impleaded,

Petitioner; and John W. McGrath Corporation and

Arrow Steamship Agency, Inc., t/a Atlantic and

Gulf Grain Stevedoring Association,

Respondent-Impleaded,

Appellees.

APPEAL FROM THE Unitep States District Couri For

THE EASTERN DisTRict OF VIRGINIA, AT NORFOLK.

Water E. Horrman, District Jupce.

( Argued January 7, 1960. Decided August 30, 1960. )

&

Before SopeLorr, Chief Judge, and Soper and Hayns-

worth, Circuit Judges.

Sidney H. Kelsey for Appellant, and Carl C. Davis and

Alan Raywid, Attorneys, Department of Justice,

(George Cochran Doub, Assistant Attorney General.

2

Joseph S. Bambacus, United States Attorney, and

Samuel D. Slade, Attorney, Department of Justice, on

brief ) for Appellee, United States of America.

Haynswortn, Circuit Judge: ~

The foreman of a gang of stevedores was injured when

there was a rupture of a block on machinery attached to

a grain elevator, but partially lowered into the hold of a

deactivated vessel owned by the United States. Under the

Suits in Admiralty Act' he filed a libel against the United

States. This action resulted in the usual petition to implead

the granary, with which the United States had contracted

for the unloading of the vessel, and a further petition by

the granary to implead the stevedore, the employer of the

injured man, with which it had contracted for the inciden-

tal stevedoring work. The District Court dismissed the libel

after finding that the United States was not negligent and

had not warranted ¢tl.at the machinery of the granary was

“seaworthy.”

The principal question is whether the owner of a de-

activated vessel warrants to a stevedore employed by a

granary the cordition of the granarys unloading ma-

chinery. We agree with the District Court that it does not.

The Harry Lane, a Liberty ship owned by the United

States, was deactivated in 1945. Her supplies. stores, and

nautical instruments were removed. Her boilers, engines

and pipes were drained, flushed with preservatives or filled

with grease. The tail shaft and propeller were locked and

1 46 USCA § 741 et seq.

3

the rudder fixed amidship. Her cargo gear and tackle were

stripped, her winches drained and the packing removed

from the pistons. Her Coast Guard Certificate of Inspec-

tion was lifted and the biannual Coast Guard inspection

suspended. She was then relegated to the James River Re-

serve Fleet, a “moth ball fleet.” She could not be operated

again as a commercial vessel without a major overhaul and

relicensing and recertificationi.

There she remained until the price support program for

wheat resulted in such surpluses that the storage facilities

for grains were taxed. She, with a number of other “moth-

balled” vessels, was then pressed into service as a floating

warehouse. She was modi’ cd to provide additional ventila-

tion to her holds to protect the grain which was expected

to be stored there for a long period.

In June 1954, the Harry Lane was towed to the Norfolk

& Western grain elevator at Norfolk, loaded with surplus

grain and returned to the Reserve Fleet. She remained

there until September 1956, when she was again towed

to the Norfolk & Western grain elevator for the purpose

of discharging the grain she had taken on more than two

years earlier.

This use of the vessel was under a general storage agree-

ment between Continental Grain Company, the lessee of

the Norfolk & Western grain elevator, and Commodity

Credit Corporation supplemented by specific agreements

for the utilization of the storage space in deactivated

vessels of the Reserve Fleet. Continental, in turn, had a

contract with Atlantic and Gulf Grain Stevedoring Associ-

ates pursuant to which Atlantic and Gulf supplied the

necessary stevedoring services.

4

Norfolk & Western's elevator was equipped with a

“Marine leg,” a device for unloading grains. It is a large

piece of equipment, permanently affixed to the elevator and

to the dock. It is incapable of lateral movement, but, when

a ship is properly placed beneath it, the mouth of the leg

may be lowered into the hold unit it is in contact with the

grain. The marine leg is, basically, a housing containing a

system of endless-belt, grain-carrying conveyers. These

conveyers elevate the grain through the leg and carry it

horizontally into the elevator.

When the grain has been removed to the point that the

mouth of the leg is on the bottom of the hold and the eleva-

tion of the grain in the corners and remote areas of the

hold has been so reduced that the grain no longer flows

to the leg, it is necessary to bring such remaining grain to

the leg and its elevating machinery. For this purpose, the

leg is equipped with four plows or grain shovels. Each of

these plows is connected, through a bridle, to a line which

runs through a block attached to a pad eye at one of the

corners of the leg, near the mouth, and thence, through

other blocks to one of several small drum winches, high in

the leg but controlled by the longshoremen in the hold by

means of a clutch line.

The procedure is for a longshureman to walk the plow

away from the leg and place it in any desired location:

When the plow has been placed, the drum winch is a

gaged through the clutch line. As the drum takes up the

plowline, it draws the plow, and the grain in front of it,

back to the leg.

On the day of his injury, Roper was supervising a crew

of stevedores operating the grain plows. He undertook to

5

demonstrate to one of them a more efficient use of the

plow. During the course of this demonstration, after the

drum winch had been engaged and while the plowline was

in tension, a strap holding the plowline block near the

mouth of the leg broke, and the block flew into Roper's

face.

Subsequent examination of the block disclosed the fact

that its bushing had become worm, allowing the sheave to

wobble and to contact the strap. The turnings of the sheave

cut into the strap until the strap failed.

The block was unsafe for use, but the defect was not

apparent upon a visual inspection of the assembled block.

Indeed, Roper testified that one of his duties was to inspect

the marine leg and its equipment prior to each use of it

and that he had inspected it on the day that he was injured.

The defect would have been apparent if the block had been

disassembled. The disassembly of one block would not

have been a complicated operation nor of long duration. If

there was a duty to disassemble this block for inspection

purposes, however the duty would require the disassembly

and minute inspection of all of the blocks, tackle and

equipment used in association with the marine leg, perhaps

the conveying machinery of the leg itself.

Under these circumstances, we think there is ample sup-

port for the finding that there was no showing of negli-

gence on the part of the United States. It had engaged the

expert operator of the machinery to do the work and it, in

turn, had engaged the expert stevedores, who regularly

worked with the machine, to perform the stevedoring serv-

ice. The duty of care by the owner of a live ship to make

her safe for the work to be done would hardly require it

to make such a minute inspection of shore-based machinery

not in its control as would have been required to disclose

the defect here. When the United States engaged com-

petent people to do the work in which they were specialists,

it was not required to verify for itself the effectiveness of

the expert's maintenance of his specialized equipment.

The more important question is whether the United

States, as owner of this deactivated vessel, warranted to

the stevedore the soundness of the marine leg and its ap-

pliances. The District Court did not consider whether the

usual warranty of seaworthiness would encompass this

sort of shore-based, shore-attached equipment,’ for it held

there was no warranty of seaworthiness. Since we agree,

we also confine ourselves to the holding that there was

here no warranty of the seaworthiness of any unloading

equipment.

It is now settled that a deactivated vessel in one of the

“moth ball” fleets is, for these purposes, dead and with-

drawn from navigation, so that there is no warranty of her

seaworthiness.? Generally, the warfinty of seaworthiness

would not arise again until the vessel had been put through

a major overhaul and she and her appliances and rigging

had been reconditioned, restored and recertified.

In West, as here, the vessel was a deactivated Liberty

ship which had been in the moth ball fleet at Norfolk. She

was towed from Norfolk to Philadelphia and there de-

livered to a ship yard for the purpose of being recondi-

tioned and reactivated. She had aboard several men who

2 See United New York and New Jersey Sandy Hook Pilots Association v.

Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed. 2d 541. McKnight v. N. M.

Paterson & Sons, Limited, D.C.N.D.Ohio, 181] F. Supp. 434.

2 West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed. 2d 161; see

also Latus v. United States, 2 Cir., 277 F. 2d 265 (decided April 11, 1960);

Kissinger v. United States, D.C.E.D.N.Y., 176 F. Supp. 828.

7

became her principal officers when she was recommiss-

ioned, but, though in the general employ of the owner, they

had not signed on the vessel when, during the course of the

reconditioning work, West was injured. These men had

the right to inspect the work on behalf of the United

States, but no right to control or supervise it. So here, the

riding master had no authority to control or supervise the

unloading operation, for his duties were limited to pro-

tection of the vessel from such hazards as fire and pilfer-

age.*

In deciding that there was no warranty of seaworthiness,

the Supreme Court in West assumed that the injured man

may have been doing seamen’s work. It held there was no

warranty to anyone, whatever the nature of the particular

work he was doing, because the vessel affirmatively repre-

sented that she was not sound or fit for sea ::..u the work

was controlled by the shipyard. Here the ship aflirmatively

represented that her unloading equipment was not sound

or fit for use and the work being done was controlled by

the elevator, not by the ship or her owner

Roper seeks to avoid the thrust of West by coutending

that the Harry Lane was returned to navigation when

she was placed in service as a floating warehouse and

moved from the Reserve Fleet to the grain elevator. He

4 To accomplish the movement of the vessel from the Reserve Fleet to the’

clevator, the custodial agent sent aboard a riding master and six seamen, but

the seamen did not sign on the vessel. They took with them sx mooring lines,

a heaving line. fire hose. a boardingladder. safety lamps. 1 sounding rod, a

lead line and several clectric light clusters. The seame handled the moorinz

lines at the Reserve Fleet anchorage and at the elevator, but were then dis-

missed. The riding master remained employed to sce that the ship was properly

moored and kept clean, that the seals on her storeroom, were not broken and

that fire hazarls were not created. He was not berthed or messed aboard. In-

deed, he was not in command of the actual movement of the vessel, that having

been under the control of the pilot captain of one of the two tug boats that

moved the vessel.

8

argues that she was actually “carrying” cargo, that the

movement was in furtherance of a commercial transaction

and that she should be treated as if she had been re-

activated and returned to service.

Of course, the United States was under a duty to ex-

ercise care to see that such things as the vessel’s hatch

covers and ladders, with which the stevedores ‘must neces-

sarily work, were reasonably safe for use. Should we ignore

the fact that the vessel had no crew and carry Roper’s con-

tentions to their extremities, we could, at most, find a war-

ranty that the ship, itself, her hatch covers and ladders

were safe for their intended use.* No such limited use

could give rise to a warranty of seaworthiness of unloading

equipment, all of which was still in “moth balls” or com-

pletely removed.

Petterson v. Alaska Steamship Co.* and Rogers v.

United States Lines’ extended a live ship's warranty of

her unloading equipment and gear to similar appliances

brought aboard by the stevedore and used with the actual

or implied permission of the ship. In such situations it is

appropriate that the protection of the warranty not depend

upon technicalities of title. Those cases in no way suggest,

however, that a dead vessel which does not warrant its own

equipment, and no one supposed it did, nevertheless war-

rants the machinery of a granary simply because it is used

to unload the vessel. It is not the fact that an unloading

atin is being performed which gives rise to the war-

8 See, RSS Hawn v. American S.S. Co., 2 Cir., 107,F 2d 999; Kissinger

v. United States, D.C.E.D.N.Y., 176 F. Supp. 828.

© 9 Cir., 205 F. 2d 478, affirmed sub nom. Alaska Steamship Co. v. Patter-

son, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798.

? 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120.

9

ranty, but the fact that the vessel in service ordinarily

represents she is sound and complete in her gear and equip-

ment. There was no such representation here, for the vessel

clearly represented itself as being entirely without operable

equipment and usable gear. The ship which has no equip-

ment or gear to warrant, does not warrant to others the

soundness of machinery they may bring aboard.

We conclude that the owner of this dead vessel did not

warrant to Roper the soundness of the granary’s ma-

chinery.

Affirmed.

SoBELoFF, Chief Judge, dissenting:

The incontestable fact in this action by the longshore-

man Roper against the S/S “Harry Lane” is that recovery

is denied for injuries resulting from a defect in equipment

actively in use in discharging cargo.

It is insisted, first, that there was no negligence in fail-

ing to inspect the gear. It is said that the burden of such in-

spection would be excessive and is therefore not required.

There is no need to analyze this reasoning, for the point

is immaterial, if the warranty of seaworthiness extends

to this situation.

On the second branch of the case, based on the claimed

warranty of seaworthiness, the majority concludes, in ac-

cordance with the shipown’er contention, that this was a

“dead ship,” which owed the plaintiff no such obligation.

10

“This was no dead ship. The sterotype does not fit and

will not survive analysis. A phrase, apt enough to describe

an inert vessel undergoing major repairs in a shipyard, is

completely misapplied to one in course of discharging cargo

—cargo which she has just transported many miles for

delivery precisely as any other cargo carrier might do.'

It does not matter that before making the journey the

vessel was inactive, or that she might thereafter again re-

sume inactivity. We find her fully active on the day with

which we are concerned. Unlike a repair-worker called in

to make a vessel fit for service, as in West v. United States,

361 U.S. 118 (1959), this plaintiff came aboard to perform

a task rightly called traditional for seamen. Due to a failure

of the equipment, he met with injury while thus engaged.

Does this not meet the law's every requirement for a re-

covery on the ground of the vessel's unseaworthiness? I

think it does, and recovery should not be denied because

of the ship's status before the voyage in question or its

expected later status. There is nothing logically incon-

sistent or legally incongruous in saying that the actual

conditions at the time of the accident control, not the past

or future.”

The only similarity between the West case and this is

that in each the ship had been for a time in the moth ball

fleet. After this common point is established all resemblance

between the two cases disappears. In West the vessel was

delivered to a shipyard for major repairs and complete

overhaul, without reservation of control or supervision over

the work. In West there was no cargo aboard nor was any

contemplated. She was in every real sense withdrawn com-

1 In the record the journey is described variously as “upstream” and “down-

stream,” but it was stated at the oral argument that the vessel traversed a

distance of more than twenty miles from the “mothball” fleet to the grain

clevator.

11

pletely from service. Here, however, the ship was taken

from the moth ball fleet and put into service as a carrier

to deliver grain to an elevator at a considerable distance.

This is the outstanding feature of our case and gives the

“Harry Lane” its distinctive status as a carrier of cargo.

Roper sustained injuries while assisting in the actual dis-

charge of that cargo. As this is a seaman’s traditional work,

he is entitled to the benefit of the warranty of seaworthi-

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

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953);

Alaska Steamship Co. v. Petterson, 347 U.S. 396 (1954);

Rogers v. United States, 347 U.S. 984 (1954); Crumady

v. The J. H. Fisser, 358 U.S. 423 (1959).*

When the vessel in the West case was withdrawn from

the moth ball fleet, if instead of being turned over to a con-

tractor for “complete overhaul,” it had been used to carry

cargo to a distant point and the plaintiff met with injury

while assisting in the unloading, I have no doubt the

Supreme Court would have permitted recovery.*

Totally irrelevant is the meticulous description of the

earlier removal of engines, etc. Reducing a fully equipped

ocean-going vessel to the condition of a barge does not

alter the case here, since on the occasion under inquiry the

vessel had been towed, like a barge, with a load of grain

and was in process of delivery when the gear failed. Barges

2 With all deference to the opinion in Hawn v. American S/S Co., 107

F.2d 499, (2nd Cir., 1939), it provides no authoritative guide. It was decided

before Sieracki and the series of cases developing its doctrine.

3 Lawlor y. Socony-Vacuum Oil Company, 275 F.2d 599 (2nd Cir., 1960),

points out the limits of the West doctrine. It holds that a ship in the yard for

annual overhaul merely, as distinguished from major repairs, warrants to those

working upon it that it is seaworthy. The instant case involves not even

annual overhaul or any work which may be said to take it out of navigation.

12

are not exempt from the obligation of seaworthiness. A

vessel is defined in 1 U.S.C.A. section 3 as follows:

“The word ‘vessel’ includes every description of water

craft or other artificial contrivance used, or capable

of heing used, as a means of transportation on water.”

See also: Ex Parte Easton, 95 U.S. 68 (1877) (a barge

is a vessel such that there can arise a maritime lien for

wharfage, enforceable by a District Court sitting in ad-

miralty); Ellis v. United States, 206 U.S. 246 (1907)

(holding that scows and floating dredges are vessels, and

that the men working on them are seamen ); Goett v. Union

Carbide Corp., 361 U.S. 340 (1960) (a barge is a vessel

to which the warranty of seaworthiness may be applic-

able); Jeffrey v. Henderson Bros., 193 F. 2d 589 (4th Cir.,

1951); Summerlin v. Massman Const. Co., 199 F. 2d 715

(4th Cir., 1952).

Calling a cargo-carrying vessel a “floating warehouse”

does not distinguish it from other water carriers or alter

its obligations under maritime law for defects resulting in

injury to those handling its cargo. So, in a sense, may any

cargo-bearing vessel be called a “floating warehouse” while

en route. Whatever the “Harry Lane’s” status may have

been while idle and with a cargo aboard, her status as a

vessel in navigation became clear when she proceeded to

deliver the grain to the elevator more than twenty miles

away. She was then not significantly different from any

vessel that had never been in the moth ball fleet.

It is suggested that the vessel had no crew, but this

vessel had a crew of six under a riding master while en

route. The question of “signing on” is of no importance

13 ys

under these circumstances. The statutes relating to signing

on, even if applicable, are for the benefit and protection of

the seamen and have never been deemed to limit the scope

of the term “seamen.”

Moreover, even if the seamen aboard the vessel during

its journey would, for some reason, not be considered a

crew, this would be immaterial. The absence of a regular

crew may be significant in the case of a ship undergoing

repair, as in West, for it then may be a factor in determin-

ing whether the ship has been withdrawn from navigation.

However, our ship was unquestionably in navigation, being

actually used as a barge, and transporting a cargo. As pre-

viously pointed out, barges, with no men aboard during

the journey, but with motive power furnished by a tug,

are vessels in navigation whose seaworthiness is warranted.

The men aboard the tug constitute the crew responsible

for the barge.

If, upon completion of the voyage, the crew, whether

travelling aboard the vessel itself or on the tug which has

it in tow, withdraws and the longshoremen take over to

make effective the purpose of the voyage by unloading the

goods, these men stand in the shoes of the seamen and are

accorded the rights pertaining to seamen. Starting with

International Stevedoring v. Haverty, 272 U.S. 50 (1926),

through Seus Shipping Co. v. Sieracki, 328 U.S. 85 (1946),

to Crumady v. The J. H. Fisser, 358 U.S. 423 (1959), this

principle has been recognized and maintained both in the

interpretation of the general maritime law and in the con-

struction. of statutes enacted for the benefit of seamen

generally: The point is no longer debatable.

14

From the erroneous assumption that the vessel was a

“dead ship” owing no warranty of seaworthiness, the

United States as owner proceeds to the next erroneous as-

sertion—a pure non sequitur—that the vessel in any event

warranted nothing beyond her own equipment. This con-

tention, however, was put to rest by the Supreme Court in

Alaska Steamship Co. v. Petterson, 347 U.S. 396 (1954),

where stevedore’s tackle brought aboard was held appur-

tenant to the ship when used in the ship's service.

The Government also asserts that the marine leg, an

endless belt extending into the bowel of the ship and lifting

grain, is not to be considered a part of the ship's equipment,

because it was land-based. The fallacy of this proposition

is exposed by the holding in Rogers v. United States Lines,

347 U.S. 984 (1954), where the shipowner was held liable

for the unseaworthiness of the stevedore’s land fall runner

used to augment the ship's gear. Also, in The Tungus v.

Skovgaard, 358 U.S. 588 (1959), the defective equipment

was shore-attached. There, a cargo of oil was being dis-

charged from the vessel, and the company engaged for

this purpose used its own pump and hoses to bring the oil

ashore. This land-based equipment becoming defective.

causing oil to spill on the deck, the plaintiff went aboard to

make repairs. He slipped on the oil and fell to his death.

The Supreme Court upheld the lower court's holding that

he was protected by the warranty of seaworthiness. See

also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953),

where the detailed facts as to the injury itself are not re-

vealed, but where apparently a similar situation was

present.

It seems to me immaterial that the marine leg was at-

tached at the top to the grain elevator on the pier. Its lower

15

end extended into the ship's hold and was actually gather

ing the grain for discharge. The dominant fact is that it was

equipment presently used in unloading. While it seems to

me unnecessary to establish which part of the marine leg

failed, it may be noted in passing that the part that broke

and caused the injury was a strap holding a block attached

to a scoop then collecting grain from the bottom of the hold

and making it available to the conveyor belt.

Furthermore, since the vessel had no equipment of her

own there is even less reason than ordinarily to relieve her

of the established obligation to arrange for seaworthy

equipment to handle cargo. If a vessel which has a full

complement of gear of her own is not excused for faliure

of equipment brought aboard hy the stevedore as in

Petterson, a fortiori she is no less vulnerable when by

failure to provide equipment of her own she must rely on

that supplied by others. The fact that the United States

employed the grain company, which in turn employed the

stevedore to preform the unloading, is immaterial. The

obligation of the United States was non-delegable. Seas

Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Crumady

v. The J. H. Fisser, 358 U.S. 423 (1959); and it was abso-

lute, Mitchell v. Trawler Racer Inc.. 362 U.S. 539 (1960).

To summarize, Roper was aboard an active, not a dead

vessel. To complete her journey it was necessary to unload

the cargo of grain. While engaged in this traditional sea-

men’s work Roper sustained injurv due to faulty equipment

assigned to his use. Under these circumstances, the

Supreme Court has made it clear that one in the position

of this plaintiff is entitled to indemnity from the vessel's

owner. Therefore. I would reverse.