Petition for Writ of Certiorari — Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.

Supreme Court brief1962

Ask Donna

What actually matters in this document.

Text

3, PR/ ey AUG J 1961

1 e ‘

| ames BROWNING. Clerk

Supreme Court of ‘the United States

October Term, 1961

No. 282

LEIGHTON BEARD,

Respondent,

v. ö

ELLERMAN LINES, LTD.

; and

THE CITY LINE LTD.,

Respondents,

—

ATLANTIC AND GULF STEVEDORES, INC.,

Petitioner.

PETITION ron’ A WRIT OF CERTIORARI TO THE

fan UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

James J. Davis, In.,

, Francis E. MansnaALIL,

123 S. Broad Street,

Philadelphia 2, Pa.,

Counsel for Petitioner.

Iaternaticaal, 711 So. Sth St., Phils. 43, Pa.

JJ 5 5s sas occ ho bo ok dadtevdciscivks

STATEMENT OF THE CASE ......... 8 gets eee eee

Reasons RIAA Upon ron ALLOWANCE OF THE Wait ......

First Point: The Decision of the Court Below Reversing a

Judgment Entered Upon the Unanimous Verdict of a

Jury Violates the Provisions of the Seventh Amend-

ment to the Constitution of the United States Which

Provides That “No Fact Tried by a Jury, Shall Be

‘Otherwise Re-Examined in Any Court of the United

States, Than According to the Rules of the Common

Law,” There Being No Rule of Law Making Such a

Finding by, the Jury Improper ...................

Second Point: The Decision of the Court Below Is in

the Presence of a Writien Con-

5 \

INDEX (Ocatinned).

Page

The Court of Appeals Erroncously Reversed the

Findings of the Jury and the Judgment Entered

Thereon in Total Disregard of the Evidence in Sup-

port of the Verdict Without Reference to the Terms

dl the Express Written Contract Between the Parties

and Seizing Upon.a Suggestion by Counsel for Peti-

tioner, That the Could Have Found Negligence

of the Shipowner on the Basis of Improper Stowage,

Assumed That the Jury in Fact So Found, Totally

Circuits, and Divisions of the Third Circuit

and the Between Decisions Within Each of

UE SI oa 5 5 6c occ anncbotc ²⅛ «ðiU m 33

Industry and to the Entire Shipping Industry ....... 42

CN as a. Beno sinc chs ccdécanewsaceecvees as

APPENDIX : 2

Judgment of the U. S. District Couttt . ͥ la

Order of the U. S. District Court 2a

/b 6 ooo RS 3a

Order of U. S. C. A. 3 Denying Petitions for Rehearing 18a

Order of U. S. C. A. 3 Staying Issuance of Mandate .... 19a

ee so ccsseecaccintesss: Mie

TABLE OF CASES CITED.

Pages

American Export Lines v. en OB On) (1959) 266 F. 2d *

—T!:Tr! x tices dstessaceins 23, A. 38, 40

e Uae tak. Marine Terminal Corp., 236

P. 26 TSR. (Oty Gir. 99GB) oo 5 oc cc cccceccevesss. 26, 34, 35, 41

Amerocean Steamship Co. v. Copp, 245 F. 2d 291 (9th Cir.

—U— : Pee y et Pr aire Daren Se 33, 35, 41

American Stevedores, Inc. v. Porello, 330 U. S. 446, 91 L. Ed.

1011, 67 S. Ce. B47 ......... 17, 23, 24, 25, 26, 27, 29, 31, 33, 41

Bailey v. Central Vermont R. Co., 319 U. S. 350 ............ 14

Baltimore & C. Line v. Redman, 295 U. S. 654 (19383) 8

Baltimore & Ohio R. R. Co. v. Griffith, 159 U. S. 603, 16 S. Ct.

105, 40 L. Ed. 244 T.! ̃ 85 13

Bentz v. Compania De Navigacion, 213 F. 24 397 (26 Cir.

TJJ7J7J7J/%// ĩͤ ͤ ͤ ͤͤÄVVSdVSSSdcC c tes 35

Berry v. United States, 312 U. S. 45õ 0... cc ce eee eee

Blair v. Baltimore & Ohio R. R. Co, 323 U. S. 600, 89 L. Ed

AAA Canccdcwess .. .. 88 14

Rollenbach v. U. S., 326 U. S. 607, 66 S. Ct. 402. 90 L. Ed 30 9

Booth Steamship Company v. Meier and Oelhaf Company, 262

,, 20k, fescue cacs 34, 37

Burcham v. J. P. Stevens Co., 209 F. 2d 333 13

Caimar Steamship Corporation v. Nacerima Operating Com-

pany, 266 F. 2d 79 (4th Cir. 1959)) 23, 34, 35, 38

Chicago R. I. & P. R. Co. v. Williams, 245 F. 2d 397 ........ 31

Crumady v. Joachim Hendrik Finer, 358 U. S423

_ 18,22, 23, 24, 26, 38, 40

Curtis v. A. Garcia Y Cia, 272 F. 2d 235 (CC. A. 3rd 1959) 9

Dimick v. Scheidt, 293 U. S. 474 (193) 8

Downing v. Union Paving Co, 184%B. 2d 481 (C. C. A. 3rd

ͤ— ! Tf, ̃¶ 16

Ferroline Corp. v. General Analine & Film Corp., 107 F. Supp.

326, affirmed 207 F. 2d 912, cert. denied 74 S. Ct. 678,

= S. 953, rehearing denied 74 S. Ct. 748, 347 U. S.

7 Pages

„ 1 3¹

Gasoline Products Co. v. Champlin Ref. Co, 283 U. S. 494

—:.: Niccksosbukiasekexes . x

Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 ................ 12

Hagans v Farrell Lined, Inc, 287 F. 24 477 (1956) :

“15, 16, H4, 36, 38, 39, 40, 41

Halcyon Lines v. Haenn Shipceiling & Refitting Corp, 342 ~

U. S. 282, 96 I. EA 318, 72S. Ct. 277 «20.20.20. eee ee 18, 43

Haver v. Bond Stores, 178 F. 2d 836 (C. C. A. 6th 1950) 32

Hodgeon v. Lloyd Brasileiro Patrimonio Nacional (decided Jay

6, 1961 by Circuit Judges Kalodner, Staley and Hastie)

15, 16, 34, 39, 40, 41

Lavender v. Karn, 327 U. S..645, 90 L. Ed. 916, 66 S. Ct. 70 14

Liberty Mutual Insurance Company v. Thompson, 171 F. 2d

ae Ge es ae 9

Martin v. City of Port Huron, 111 F. 2d 759 (C. C. A. 6th

ES aR Si Fe 32

McAlister v. United States, 348 U. S. 19, 99 L. Ed. 20, 75 S.

+ res 16

Montgomery Ward v. Duncan, 311 U. S~250 6 9

Parsons v. Bedford, 3 Pet. 447, 7 L Ed. 22. 8

Pierce y. Erie R. Ca. 165 F. Supp. 216, aff'd 264 F. 24136... 2

Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 98 L. Ea 143, nm

Oe eee ie ds dics acncnusesess 18

Reddick v. McAlllister Lighterage Line, 258 F.2d 297 (2nd Cir.

1958) ; certiorari denied 388 U. S. 908, 3 L. EA 2d 229, 79

6 (((( ⁰ 3334 . 35, 41

1 Pan Atlantic S. S. Corp., 350 U. S.

l 18, 20, 21, 23, 24, 26, 32, 36, 37, 39

CF. ai, esos aa een, seo, v. S 24814 31

Seas Shipping Co. v. Sieracki, 328 U. S. 85, 90 L. EA 1099, 66

... a cc ancac coed 17, 18, 34

Sentilles v. Inter-Carribean Shipping Corp., 361 U. S. 107, 4 —.

LE (2) 142, 80S. Ct. 173 ............ Sea 13, 16

Shannon v. United States, 235 F. 2d 457 (2d Cir. 186) 40

Pages

Smith v. Pan Atlantic Steamship Corporation, 161 F. Supp. 422

(E DU Pa. 1957) affd per curiam, 254 F. 2d 600 (3rd

OCW; SIDED „„ . . 0,9, 40

States Steamship Co. v. Rothchild International Stevedoring

Co., 205 F. 2d 253 (9th Cir. 1933)))))P 35

The Texas Company v. Gianfala, 350 U. S. 879, 100 L. Ed. 775 13

Texas & Pac. R Co. v. Gentry, 163 U. S. 353, 16 S. Ct. 1104,

...,... ᷑ͤ ⁵ꝛ H Sc se Udo vcs vneens 13

Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29 (1944),

rehearing denied 321 U. S. 80 16

Thompson-Starrett Co. v. Otis Elevator Co., 271 N. V. 36,2 -

1 ae hace cn dahis © s Casds oon caccksicecccsens 31

Tiller v. Atlantic Coast Line R. Co, 318 U. S. 44. 14

United States v. Harrison, 245 F. 2d 911 (9th Cir. 1957) . 38, 34, 41

U. S. v. Alfred Manuszak, 234 F. 2d 4121212 9

United States v. Rothchild International Stevedoring Co., 183

% A ·1 ere 34, 36, 41

Walker v. New Mexico & S. P. R. Co, 165 U. S. 593 (1897) 8

Weyerhaeuser Steamship Co. v. Nacirema, 355 U. S. 563, 2 L.

Ed. 2d 491, 78 S. Ct. 438 (1958) ...... 11, 15, 17, 18, 20, 23, 24,

25, 27, 29, 30, 31, 32, 33, 36, 37, 39, 41

Waterman S. S. Corp. v. Dugan & McNamara, 5 L. Ed 2d

20 ĩͤ sdaadewuevescdvis lances 24, 26

STATUTES AND AUTHORITIES CITED

' Pages

42 C. J. S. Indemmity Section 5 ss 31

Federal Rules of Civil Procedure, 28 U. S. C. A.:

a ͤ ͤ ͤͤ——— i se cnc icacee .

7. 6b. ⁵m:m‚wm a eee 8

Longshoremen’s and Harbor Workers’ Act (33 U. S. C. Sec.

T Q œ ũ ( V -T VFV-VFV--?W?W—WWau 11

T!!! TT:. nascvanwescse 18

—

IN THE

Supreme Court of the United States.

/ —

Ocroser Term, 1961.

No.

LEIGHTON BEARD,

Respondent,

ELLERMAN LINES, LTD., Ap

THE CITY LINE, LTD.,

—

Respondents,

ATLANTIC AND GULF STEVEDORES, INC.

2 N Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

To tHe Honorasie, The Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Petitioner, Atlantio and Gulf Stev dores, Inc., re-

spectfully prays that a Writ of Certiorar®ssue to review

the final judgment of the United States Couft of Appeals

for the Third Circuit, entered on April 7, 1961, reversing

the judgment of the District Court of the United States for

the Eastern District of Pennsylvania, and the appeal dock-

eted in the said Court of Appeals as No. 13,278, and the

order of the said Court denying rehearing entered-on May

31, 1961.

Petition for a Writ of Certiorari

OPINION OF THE COURTS BELOW.

The District Court did not file an opinion. The opin-

ion of the Court of Appeals for the Third Circuit is re-

corded in 289 F. 2d 201 (infra, p. 3a). The Court of

Appeals for the Third Circuit did not file an opinion deny-

ing the petition for hearing of Atlantic and Gulf Stevedores,

Ine. 0

| JURISDICTION.

The judgment of the Court of Appeals was entered on

April 7, 1961 (infra, p. 20a). The Order denying the

Petition for rehearing was entered on May 31, 1961 (inf ra,

p. 18a). The jurisdiction of this Court is invoked under

28 U. S. C. Sec. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED.

U. . C. Constitution Amendment VII—Civil Trials.

In suits at common law, where the value in contro-

* PRESENTED.

„„ ͤ ie le ah eke of

to the rules of the Common Law and as such a violation

of the Seventh Amendment of the Constitution of the

United States? 0

—

Petition for a Writ of Certiorari 3

No. 2. Where a shipowner and a stevedoring con-

tractor enter into a written contract which expressly de-

fines the obligation of each, and a Jury’s special verdict

acquits the stevedore of any failure to do its work in

accordance with the contractual obligation is it not error

for an Appellate Court to set aside the factual finding of

the Jury and reverse a judgment entered upon such verdict

on the ground that tie stev as a matter of law,

breached its ‘varranty to verform the obligations of the

contract with reasonable safety?

No. 3. Where the verdict of a jury is based upon sub-

stantial and competent evidence, and the Trial Court’s

charge encompassed all of the issues raised by the plead-

ines, proofs and the contractual obligations of the parties,

may the Court of Appeals reverse such verdict without a

holding or showing that the special verdict of the jury is

clearly erroneous l ;

STATEMENT OF THE CASE.

1 Leighton Beard, resident and citizen of Pennsylvania,

brought this civil action, founded upon the diversity juris-

diction of the District Court against Ellerman Lines, Ltd.

and The City Line, Ltd., British corporations, hereinafter

referred to as ‘‘Ellerman’’, to recover damages for serious

injuries sustained in the course of discharging bales of

burlap from the latter’swessel, S. S. City of Caloutta

The accident occurred July 1, 1955. Beard, a longshore-

man, was employed by Atlantic & Gulf Stevedores, Inc.,

hereinafter referred to as ‘‘Atlantic’’, a concern engaged

in stevedoring services for Ellerman.

Beard’s complaint against Ellerman alleged that the

latter’s vessel was ufiseaworthy and that Ellerman was

negligent. Ellerman impleaded Atlantic as a third-party

defendant alleging that Beard’s injuries resulted from At-

lantic’s failure to proper perform the work of unloading

4 | Petition for a Writ of Certiorari

the cargo, using a negligent manner to unload the cargo,

using devices that were dangerous, improper and in viola-

tion of its agreement with Ellerman (11a, Appellant’s Ap-

pendix). Ellerman songht indemnity from Atlantic, under

their contract, in the event it was held liable to Beard.

The undisputed facts indicate that the bales of burlap

had been Joaded in India. The bales in question weighed

approxi ly eleven hundred pounds, measuring two feet

by three feet by four feet and were stowed in the lower

tween deck of the number one hatch of the Ellerman vessel,

the S. S? City of Calcutta’. Atlantic played no part in

the loading or stowage of this cargo.

Theré were sixty-three tons of New York bales in the

forward end of the hold extending out halfway into the

‘square of the hatch, adjoining one hundred tons of Phila-

delpBtia bales of. burlap stowed to an equal height and ex-

tending to the after end of the hold. Though the vessel

arrived from New York, no evidence was offered to explain

why the New York bales had not been discharged. The

bales were tightly bound by four parallel one-inch bands,

each bale containing thirty to forty bolts of burlap and

a ring to which six equal length ropes were attached. A

metal bands which compressed the bales, using

per bales were thus raised together.

itil

;

be raised vertically. The holdmen would then seek

square of the hatch protected by the

three hours of such operation, two

iers of the Philadelphis bales had been removed. As a

of ;

three bales was being lifted out of the hatch to a

end hook on the end of each rope was inserted

Petition for a Writ of Certiorars 5

height of approximately thirty feet, in a vertical lift, the

two bands of one bale broke, causing the bale to fall. It

struck the New York cargo and bounded in the direction of

Beard, pinning him against the after bulkhead and causing

injuries which necessitated the amputation of his right leg

above the knee. No other bales were known to have fallen

while being lifted vertically prior to the accident in question

or during the years of experience of any of the witnesses

or experts who testified in the case. e

The case was tried before the Honorable Chief Judge

J. Cullen Ganey and a jury. After ten days of trial the

issues were presented to the jury upon five interrogatories,

phrased after much discussion in a form agreed upon by

counsel (185b-215b). After deliberation, the jury returned

with the following answers to interrogatories (187a-189a) :

1. Was unseaworthiness a substantial factor in caus-

ing the injuries to the Plaintiff?

Yes. é

2. Was there negligence on the part of Ellerman Lines,

- Ltd., which was a substantial factor in causing in-

juries to the Plaintiff? ~

Yes. ; . 2

3. In what amount, if any, did you assess the damages

fo be awarded the Plaintiff? eee

$100,000.00. - - gee :

4. If you have answered ‘‘yes’’ to interrogatories 1

or 2 did the fault of Ellerman Lines, Ltd., and the

City Line, Ltd. arise out of any failure on the part

of Atlantic and Gulf Stevedores, Inc., to do its

work in accordance with the contractual obligation!

No.

5. If you have answered yes to interrogatory No.

4, was Atlantic and Gulf Stevedores, Inc.’s breach

of this contract a substantial factor in bringing

about the injuries to the Plaintiff?.

No:

172a, 173a, Appellant's Appendix).

The Court of Appeals found as a matter of law that

Atlantic was liable to Ellerman for indemnity for breach

. of ite. warranty to perform the obligations of the contract

2 Tho issue of unseaworthiness was

not considered Court. :

Petitioner

Petition for a Writ of Certiorari a

ment to the Constitution and that the Court erred in hold-

ing Atlantic liable as a matter of law notwithstanding that

the jury found ‘no breach of Atlantic’s written contract.

Petitioner further contended that the Court erred in con-

cluding that the District Court fai to submit to the jury

the issue of ‘‘unsafe place rk’’ since the instructions

to the jury encompassed all of the issues raised in the

pleadings, during the trial and the terms of the contract

which was offered in evidence. :

The Court of Appeals denied the Petition for a re-

hearing without opinion. 5 :

REASONS RELIED UPON FOR ALLOWANCE OF

. THE WRIT -

Improper.

The decision of the Court of Appeals in the instant

case reversing the unanimous verdict of impartial jurors

was a capricious and unreasonable action directly contrary

to the provisions of thé Seventh Amendment to the Consti-

tution of the United States. The decision marks another

step in the gradual erosion which has unfortunately worn

away part of the essential guarantee of the Seventh Amend-

ment.

The Seventh Amendment to the Constitution of the

United States provides :

In suits at common law where the value in con-

troversy shall exceed twenty dollars, the right of trial

3 Petition for a Writ of Certsorars

by jury shall be preserved, and no fact tried by a jury

shall be otherwise re-examined im any Court of the

United States, than according to the rules of the com-

mon law. (Emphasis added.)

The amendment has for its primary purpose the preser-

vation of ‘‘common law distinction between the province of

the Court and that of the jury, whereby, in the absence

of express or implied consent, issues of law are resolved by

the Court and issues of fact are resolved by the jury under

appropriate instructions of the Court: Baltimore & C.

Line v. Redman, 295 U. S. 654, 657 (1935) ; Walker v. New

Mexico & 8. P. R. Co., 165 U. S. 593, 596 (1897) ; Gasoline

Products Co. v. Champlin Ref. Co., 283 U. S. 494, 497-499

(1931) ; Dimick v. Scheidt, 293 U. S. 474, 476, 485-86 (1935).

he aim of the amendment to preserve the historic

development.)

The only modes known to the common law to re-ex-

amine such facts as are properly tried by a jury are the

was adopted for the

venting unnecessary retrials. It merely renders unneces-

sary a request for reservation of the question of law or a

formal reservation and in addition it regulates the time and

Petition for a Writ of Certiorart

1611 if

549 12211

5 ih

1141 i

131 ‘ iF gas

or 128

l 118

11 715 r

111131112105

12175 32 113 i

‘| HE 2e

—

nent a U

f 1 % e 10 its

: 1 % 0

Hin 1 | |

, eh 0 14 l

ii aaa l

11 1 f

h aa 1 0

7 11117 qi: 111 11 a} Hl

tid tlh 10 i 1

1 iy ff RH hae iil

1105 fi 1100 ii 11111 Hie 171115 1

f 1 a f 110 Af

1 1M. 1 41 12

1 Tat Ain i

1 ie i

l 115

11 ite

e 1

111215

l l Bil

Petition for a Writ of Certiorari

means that the courts are substituting their judgment for

that of the jary on fact questions in violation of constitu-

tional requirements: Burcham v. J. P. Stevens Co., 209

fej] 117 jal

ü 85

a : i

a 0

——

14 ; Petition for a Writ of Certiorari

ence or conclusion drawn by the jury The very

ende of its (the jury’s) function is to select from

among conflicting references and conclusions that

which it considers most reasonable . Courts are

... olden and ext aside the ory

verdict merely because e e eee

* ferent references br or because judges feel

that other results are Tennant v.

Peoria & P. U. 5 29, 35, 88 L. Ed. 520,

325, 64 S. Ct. A U. 8. 647. See Rogers

i v. Missouri — 2 U. S. 500, 1 L.- Ed. (2)

493, 77 8. Ct. 4 (Emphasis supplied.)

In she instant see, the finding of negligence by the

jury as oe trary Sng thatthe nerve

ee ae. finding that the stevedore was

ulso negligent. The facts in evidence justified a contrary

finding and the Court of Appeals could not reverse it by

suggesting that it was required as a matter of law.

In Levender v. Kurn, 327 U. 6. $45, 90 L. Rad. al6, 66 |

S. Ct._740, this Court said:

„ when there ia eee abeence et probe

8. 54,

67; Bailey v. eee en ee

Blair v. Baltimore & Ohio R. R. Co., 323 U. S. 600, 89 L.

Ed. 490. ,

Indeed in two cases dealing essentially with the issues

c c oan ee, Oe Shed

7 ha

Petition for a Writ of Certiorari 15

Cireuit has met the issue in conformity with the require-

ments of the Seventh Amendment. Most recently in Hodg-

son v. Lloyd Brasileiro Patrimonio Nacional (docided July

6, 1961 by Circuit Judges Kalodner, Staley and Hastie

(two of whom were members of the court which decided our

case)) the jury in answer to a special interrogatory, found

that the shipowner was not guilty of negligence but based

upon a finding of unseaworthiness, made an award in favor

of Hodgson against it. The shipowner argued on appeal

that judgment rendered against it.in the third party pro-

ceedings for indemnity, must be reversed as a matter of

law despite a jury finding that the stevedoring company

had performed its services in a eee safe and

proper manner. The Court of Appeals said:.

„The shipowner forgets that an ee court

will not interfere with a judgment entered on a verdict

returned by a jury simply because of its opinion as to

the weight or preponderance of the evidence. Liberty

Mutual Insurance Co. v. Thompson, 171 F. (2d) 723

(C. A. 5 1948); Harnick v. Lilley, 167 F. (2d) 159 (C. A.

8 1948); 5 Moore’s n Practice Sec. 38.08 (5

p. 89). ? 6

JJ... P „„

decision in Hagans v. Farrell Lines, Inc., 237 F. 2d 477

(1956) where, in an opinion written by Judge Kalodner,

the court felt bound by the-jury’s finding and specifically

referred to Weyerhaeuser S. S. Co. v. Nacirema Operating

Co., 355 U. S. 563, saying:

: Winther the stevelering comenay’s ebe dsds

stituted a breach of the provision (of the agreement)

was, of course, a question of fact for the jury. Weyer:

haeuser Z. 8. Co. v. Nacirema Operating Co., supra.

In the instant case there was ample ovideses to sup-

port the jury’s verdict. All of the witnesses were unani-

mous in their testimony that Atlantic’s methods were the

cargo

odgson, referred

in Hagans and H

ard 1949) ;

321 U. A 29

Petition for a Writ of Certiorari

only methods they had seen used in

—

and efficient than

(C. C. A.

Tb, 14b, ast). The method is

justified in finding that the fault of

arise out of a

3; they had never seen

The jury was thus

Safety

tion.

(Ad,

tical

Petition for a Writ of Certiorari 17

Appeals. The question therefore, is whether the find-

ings of the District Court are clearly erroneous.’’

(Entphasis supplied.)

175

PERE

Nacirema, 355 U. 8. 563, 2 L. Ed. 2d 491, 78 8. Ct. 438

(1958).

18 Petition for a Writ of Certiorari

Heleyon Lines v. Haenn Shipceiling d Refitting Corp., 342

U. S. 282, 96 L. Ed. 318, 72 S. Ct. 277; Pope d Talbot, Inc. v.

Hawn, 346 U. S. 406, 98 L. Ed. 143, 74 S. Ct. 202; Ryan

Stevedoring Co. v. Pan Atlantic 8. S. Corp., 350 U. 8. 141

pth gsr Steamship Co. v. Nacirema Steamship Co.,

. 385 U. S. 563 (1958); and Crumady v. Joachim Hendrik ~

Pisser, sas U. 3 482.

The active of fitigation involving suits for in-

demnity and * ‘‘eontribution’’ by vessel owners

against independent stevedoring contractors set the stage

for this group of decisions by this Court extending the

ee e worthiness to a class of workers which had

been regarded as strangers to the rigors in-

ships. Thus in 1946, in Seas Shipping Company v. Sieracki,

(supra) the Supreme Court of the United States initiated

this umprecedented course by holding that longshoremen

were entitled to the warranty of seaworthiness. In Halcyon

Lines v. Haewn Shipceiling d Reſtting Corp., (supra)

(1962) this Court determined that the vessel could not seek

contribution from an independent stevedoring contractor as

am avenue to insulate its new and judicially acquired ex-

posure. In Pope ¢ Talbot, Inc. v. Hawn, (supra) (1953)

this Court further extended the warranty of seaworthiness

to cover a carpenter who was temporarily working aboard

In 1958, this Court developed relief for the vessel by

way of indemnity in the landmark decision of Ryan Steve-

doring Company v. Pan Atlantic Steamship Corp., (supra)

wherein this Court held that the provisions of Section 5 of

the Longshoremen’s and Harborworkers’ Compensation

. Act, 33 U. S. C. 905, did not act as a bar to the shipowner’s

asserted right to recover indemnity., The rationale behind

the Court’s holding on this point can best be summarized

in these words from the opinion:

‘While the compensation act protects a stevedoring

contractor from actions brought against it by its em-

Petition for a Writ of Certiorari 19

ployee on account of the contractor’s tortious conduct ~

causing injury to the employee the contractor had no

logical ground for relief from the full consequences of

its independent contractual obligation, voluntarily as-

sumed to the shipowner to load the cargo prop-

"ak: eae ena /

. The shipowners action here is not founded upop

a tort or upon any duty which the stevedoring con-

tractor owes to its employees. The Third-Party Com-

plaint is grounded upon the contractor’s breach of its

purely consensual obligation owing to the shipowner

to stow the cargo in a reasonably safe manner. Ac-

cordingly, the shipowner’s action for indemnity on that

basis is not barred by the compensation act“. (Em-

phasis supplied.) (350 U. S. 131, 100 L. Ed. 140, 76

S. Ct. 239.)

The Court then reached the second question which it

_ viewed as whether, in the absence of an express agreement

of indemnity (there being nd formal written contract) a

stevedoring contractor was obligated to reimburse a ship-

owner for damage caused by the contractor’s improper

stowage of the cargo. The Court clearly indicated that the

decision would be based on contractual principles and ex-

pressly refused to meet he question on common law indem-

nity principles: 5

„Because respondent in the instant case relies entirely

upon Petitioners contractual obligation, we do not

meet the question of a non-contractual right of in-

demnity or of the relation of the Compensation Act

to such a right.“

The Court reasoned that Ryan having-agreed to per-

form all of the shipowner’s stevedoring operations at the

time and place where the cargo in question was loaded, of

necessity agreed to stow the cargo properly and safely and

20 Petition for a Writ of Certiorari

that failure to do so was in effect a violation of the very

the stevedore owed to the shipowners a warranty of

workmanlike service which the Court compared to a man-

ufacturer’s warranty of soundness of its manufactured

product. The Court rejected the theory that the ship-

owner’s duty to supervise the stowage and right te reject

unsafe stowage, would preclude it from recovering in-

demnity. any: ic whine tha aphid of any. Court

2 f to i

urged or proved that the vessel had actual knowledge of the

* condition resulting in injury to the longshoreman. Instead

the Courts considering the Ryan. case viewed the fault of

the vessel as arising from the fact that the vessel failed to

discover and should have known of improper stowage.

Clearly in Ryan the vessel owner no actual knowledge

of the defects and its failure was merely one to inspect and

discover the defect..

This Court again considered the indemnity question in

Weyerhaueser Steamship Company v. Nacirema Operating

Company, Inc., (supra). In that case, a winch shelter built

in New York by the stevedore was permitted to remain

while the ship proceeded to and arrived at Boston. There,

the shelter was not inspested by either the stevedore or the

ship’s crew until the injury which occurred some five days

after the arrival of the vessel in Boston. The case was

tri a fury with the judge reserving submission of the

until he received the verdict on the main

suit. The jury was charged as to both seaworthiness and

negligence and returned a verdict in favor of the Plaintiff

on the negligence cause of action and in favor of the vessel

on the unseaworthiness count (236 F. 2d 849). After re-

ceiving the verdict for the Plaintiff in the main case, the

trial court directed a verdict in favor of the stevedoring

contractor against the vessel on the indemnity action. The

Court of Appeals. affirmed the directed verdict. The Su-

* preme Court of the United States in a unanimous opinion

7 g

Petition for a Writ of Certiorari 21

reversed the Second Circuit and remanded the case for a

new trial, holding that it was error for the trial court to

direct a verdict in favor of the steyedore and that the issues

relating to indemnity should have been submitted to the

jury. The Court goes on to enunciate a principle, without

clarification, that may well be the critical factor in indem-

nity actions (355 U. S. 567, 2 L. Ed. 2d 494, 78 S. Ct. 442):

If in that regard respondent rendered a substandard

performance which lead to foreseeable liability of peti-

tioner (the vessel) the latter was entitled to indemnity

absent conduct on its part sufficient to preclude re-

covery.’’ (Emphasis added.)

The Court gave no indication of just what conduct on

the part of the vessel would be necessary to preclude re-

covery of indemnity against the stevedore, but indicaied

clearly that the test of liability in the indemnity action rests

on different principles than the liability of the vessel to the

Plaintiff in the main case. It reiterated in a footnote (2 L.

Ed. 2d 282) the admonition of the Ryan case that (350

U. S. at 134) : the shipowner’s action is not changed from

one for a breach of contract to one for tort simply because

recovery may turn upon the standard of performanoe of

petitioner 's stevedoring service“, and stated (355 U. 8.

567.568, 2 J. Ed. 2d 494.495,78 8. Ct. 442, 443): 8

„The evidence bearing on these issues (the indemnity

issues)—Petitioner’s action in making the shelter on

its ship available to respondent’s employees in Boston,

although it apparently was unsafe, as well as respond-

ent’s continued use of the shelter for five days there-

after without inspection—wae for jury consideration

under appropriate instructions. These issues were not

encompassed by the instructions in die main case,

where the test of Petitioner’s liability was based on

failure to perform a non-delegable duty to Connolley.

22 Petition for a Writ of Certiorari

principles, Crawford v. Pope & Talbot, Inc., (C. A. 3

Pa.) 206 F. 2d 784, 792, all fact issues involved in the

third-party action should have been submitted to the

jury after the verdict in the main case.

might have been predicated on one of at least three differ-

ent grounds the Court concluded that at least one of these

reasons, i. e., the failure on the part of the vessel during

the five days in Boston to inspect the shelter and to detect

and correct the unsafe condition would not preclude a re-

covery of indemnity by the vessel

On February 24, 1959, this Court decided Crumady v.

Fisser, (supra). „The accident occurred there while cargo

ping-lift parted, permitting a cargo boom and its attach

mente to fall into the hatch, striking and injuring the

Plaintiff. The safe working load of the boom and topping-

ing or unloading of the ship over to the stevedoring com-

Petition for a Writ of Certiorari 23

pany. The Court based its opinion on the fact that the

shut-off device was adjusted by the shi 50 as to

make it unsafe and dangerous for the work at hand. This

Court, however, felt that the shipowner was entitled to in-

demnity under the principle announced in the Ryan and

Weyerhaeuser cases. The Court concluded the District

Court’s finding that the negligence of the stevedoring con-

tractor brought the unsedworthiness of the vessel into play

and amounted to a breach of warranty of workmanlike

service, was not clearly erroneous. ~—

The Crumady case still did not undertake a definitive

statement of the ‘‘conduct on the part of the shipowner’’

which will bar indemnity. It merely indicated that fur-

nishing defective equipment will not necessarily have that

effect.

Thus Courts attempting to apply Weyerhaeuser and

Crumady have real difficulty in determining what conduct of

the shipowner will bar indemnity and are relegated to mak-

ing comparisons to the actions of the owners in Crumady

and Weyerhaeuser resulting in abstract and conjectural con-

clusions: See Calmar Steamship Co. v. Nacirema Operating

Co., (4th Cir.) (1959), 266 F. 2d 79, 80, 81; American Ex-

port Lines v. Revel, (4th Cir.) (1959) 266 F. 2d 82.

In the latter case the Court said: We do not attempt

to explore what conduct, in other circumstances, would be

‘sufficient to preclude recovery’. We merely: hold that

under the decisions of the Supreme Court the limits are

not transcended here.

What are the limits? What is the conduct which will

bar recovery by way of indemnity? Will any conduct of

shipowner, bar recovery in the case of the existence of a

contract of indemnity? These questions remain unanswered

by this Court, because their determination are-matters of

fact in each case, which Weyerhaeuser and P clearly

hold should be submitted to a jury, and are not a matter of

law as the Court of Appeals erroneously held in the instant

case. It is only where a jury or the fact-finder, as in

Petition for a Writ of Certioreri

Crumedy, find negligence of the stevedore amounting to a

breach of contract that a court can say that the obligation

to indemnify as a matter of law exists.

In Waterman &. &. Corp. v. Dugan & McNemera,

5 L Ed. 3d 168 (1960) the stevedore alleged as an affirmative

defense that there had been no direct contractual relation

chip between it ent the potiigner

10 i

seal —

a Le a

shipowner and stevedore

indemnity and expressly

— —

(0) „„

sider whether in a situation such as this the ebsence of a

contractual relationship between the parties is fatal to the

ee mene ok Gee oe

indemnity damn (6 I. Ed. 24 171).

i] 7

eae W 1 *

e e e

4 Ht 3 4 He 1

fi 1 Hit

1 ale ial! it Hi

ae 4 e i]

Petition for a Writ of Certiorari

Court

contract

be cansidered by

factual issue

significant

of the

wher

—

Petition for a Writ of Certiorari

M Ti Te

it 10 HoH 1 10 f

210 ds ial A 2274

16% i ifs! 1 1.

it | it i aE N iit

HF i TWAT 11

ill HHH Hi 1

ss Petition for a Writ of Certiorari 27

the shipowner’s negligence was found by the jury was un-

certain. Whether the right to indemnity exists would most

naturally be i by the jury, which, in the first

{

reference to the con

judge

— Appendix)

ind

Petition for a Writ of Certidrari

tract under « full and appropriate charge of the trial

(171a, a 1738

Seg spate

1111! 1516 Hy zt 1 ti K 1

: ai 1112 i he 10 0 11.

11 eh

16 Ht 32 Plt

i F jak

0 il TSA ited li l

12 il 11

Petition for a Writ of Certiorari 29

It is evident from the quotation of the charge on this

point, that although the shipowner had presented no evi-

there was a substandard ormance of any part of the

contract and whether the ty of the shipowner arose

out of ANY failure on the part of Petitioner.

Thus it is evident that the Trial Judge specifically fol-

, lowed the mandate of this Court in the Porello and Weyer-

Relating the special verdict of the jury to the contract

here involved, it is obvious that the injuries were not caused

by any failure or negligence of the Petitioner or any act

constituting a breach of contract.

The Court of Appeals Erroneously Reversed the Findings

of the Jury und the Judgment Entered Thereon in

Total of the Evidence in Support of the

Verdict Reference to the Terms of the

Express Written Contract Between the and

Seizing Upon a Suggestion by for Peti-

toner, That the Jury Could Have Found Negli-

gence of the Shipowner on the Basis of Improper

Stowage Assumed That the Jury in Fact So

Found, Totally Disregarding That Other Independ-

ent Grounds of Neglizence of Shipowser of Which

the Jury Acquitted Petitioner, Were Equally Sup-

ported by Evidence.

E „

the time of stowage in India; the improper stowage of the

@, two consignments; the failure to discharge tho New York

consignment before the arrival of the vessel in Philadelphia

ral

30 | Petition for a Writ of Certiorari

and the ‘‘unseaworthiness of the vessel“, created by these

vent recovery“ of indemnity in the third-party action.

(Weyerhaeuser, 355 U. S. p. 568.)*

To hold that a stevedore may be liable as an indem-

nitor for the liability of a shipowner caused by the ship-

owner’s negligence and conditions committed and existing

at the tiine of the application of the contract and merely

for working under such conditions or for the interaction of

such conditions, equipment or stowage which the Petitioner

did not control and had no duty to , repair, correct

or control, is to make of the st an absolute guar-

antor and to create a contractual i ity far beyond the

compass of the agreement actually made and here involved:

Petition for a Writ of Certiorari 31

Cir. 1958), which held that under such circumstances the

stevedore was performing, not breaching, the contract.

Under the facts presented by the evidence, nothing

short of a contract agreeing to hold the shipowner harmless

or indemnifying the shipowner against its own indepen¢-

ent negligence and expressly accepting liability to Peti-

tioner’s employees caused by the shipowner’s acts in cre-

ating or causing an unseaworthy condition, in whole or in

part, could be held to im such absolute liability on the

stevedore—No Sven Co ct Existep. -

Tphe effect of the decigion of the Court of Appeals is

to create such absolute iability on the part of the stevedore

who enters into emnity agreement no matter how

carefully the language of the agreement is written to limit

such indemnity. Since a stevedore is generally deemed to be

an ‘‘expert’’ the conclusions reached by the Court of Ap-

peals in this case, if allowed to prevail as the applicable law,

would require every Court to hold that the expertise“ of

the stevedore is in itself a sufficient substitute for a specific

and clear agreement to be liable as an indemnitor. This is

directly contrary to the holding of Porello and Weyer-

haeuser.

A contract for indemnity against the consequences of

one’s own negligence must be cléar and definite in its pro-

visions: Chicago R. I. & P. R. Co. v. Williams, 245 F. 2d

397. The language employed must clearly and definitely

show an intention to indemnify against a certain loss or

liability; otherwise it is not a contract of indemnity: 42

C. J. S. Indemnity Section 5; Frankel v. Johns Manville

Corp., 257 F. 2d 508; Thompson-Starrett Co. v. Otio Ele-

vator Co., 271 N. T. 36, 2 N. E. 35, 36. In the latter two

cases the indemnitees were found to be negligent, while the

indemnitor, as in our case, was found not to be negligent.

The Court, in each case, pointed out the neceasity for un-

equivocal language, if one is to,be :ndemnified against his

own negligence and denied recovery to the indemnitee:

Cf. Salamy v. New York Central System, —

814.

32 Petition for a Writ of Certiorari

An agreement by a stevedore to indemnify a party for

liability for personal injuries must express an intention to

throw loss upon the indemnitor beyond peradventure of a

doubt: Pierce v. Erie R. Co., 165 F. Supp. 216, aff’d 264

F. 2d 136.

JJ öͤàui 44

and an implied contract is well established and, where an

express contract exists, the law will not imply a different

agreement: Martin v. City of Port Huron, 111 F. 2d 759

(C. C. A. 6th 1940); Haver v. Bond Stores, 178 F. 2d 836

(C. C. A. 6th 1950); Ferroline Corp. v. General Analine k

Film Corp., 107 F. Supp. 326, affirmed 207 F. 2d 912, cert.

denied 74 S. Ct. 678, 347 U. S. 953, rehearing denied 74 8.

Ct. 748, 347 U. S. 979.

It is not believed that this Court intended in the Ryan

case, or any case involving similar iesues since that time,

to undermine the Longshoremen’s Act or to announce as an

absolute principle of law that, without regard to whether

a stevedoring company intends to agree to indemnify or

agrees to indemnity only in the event of certain contin-

gencies involving its own negligence, it has nevertheless

agreed to absolute liability for such indemnity merely be-

cause it agrees to do a job. We submit Weyerhaeuser makes

it clear that this was not this Court’s intention in Ryan.

On the contrary Weyerhaeuser makes it clear that in the

presence of 0 written contract, the terms of the writing myst

be considered and will control.

The Court of Appeals in the instant case held instead

that the contractual obligation of the stevedore was to be

equated with the duty of the shipowner to the Plaintiff.

Hence, solely on the fact that the shipowner was found to

be negligent it concluded that the stevedore had to be neg-

ligent, despite the jury’s special verdict to the contrary.

The effect of the holding of the Court of Appeals is to

thwart entirely the import of the limited liability of a steve-

dore which the Longshoremen’s Act was deliberately de-

signed to afford except where the stevedore specifically and

Petition for a Writ of Certiorari 33

voluntarily assumes burdens beyond the Act by. contract.

There is no evidence in this case to support the conclusion

of the Court below that the Petitioner voluntarily agreed

to give up the limited liability which the Longsloremen’s

Act afforded. It agreed contractually and in writing merely

to do its work ‘‘with every care and due dispatch to the

satisfaction of’’ the shipowner (148a, Appellant’s Appen-

dix). (Since there was no damage to cargo the agreement

to pay for damage to cargo if ‘‘caused through rough han-

dling and/or theft or pilferage by the stevedore’s men

during the time of stevedoring operations’’ is not applicable

here (152a, Appellant’s Appendix)). There are no other

words or language in the agreement relating to indemnity.

The absence of such words in the presence of a written

contract setting forth in detail the rights, duties, and obli-

gations of the parties must be held to mean that no volun-

tary burden of indemnity was assumed or accepted. Since

the shipowner wrote the contract and found no difficulties —

in clearly imposing an obligation of indemnity in the case

of damage to cargo it must be assumed that if he had

wanted indemnity as to other losses or injuries he could

have so stated in . unambiguous and unmistakable

terms.

The decision of the Court of Appeals is contrary to law

generally and in direct conflict with Porello and Weyer-

haeuser.

Third Point: The Conflict Between the Court Below and

the Courts of Appeal for the Second, Fourth and

Winth Circuits, and Between Divisions of the Third

Circuit and the Oonflict Between Decisions Within

Lach of These Circuits.

The decision of the Court below in the instant case is

directly in conflict with the decision of the Ninth Circuit in

United States v. Harrison, 245 F. 2d 911 (9th Cir. 1957);

Amerocean Steamship Co. v. Copp, 245 F. 2d 291 (9th Cir.

34 Petition for a Writ of Certiorari

1957), which are themselves inconsistent with American

President Lines Ltd. v. Marine Terminal Corp., 236 F. 2d

753 (9th Cir. 1956) and United States v. Rothschild Interna-

tional Stevedoring Co., 183 F. 2d 181 (9th Cir. 1950). The

decision in the instant case is likewise in conflict with the

decision in the Second Circuit of Reddick v. McAllister

Lighterage Line, 258 F. 2d 297 (end Cir. 1958) ; certiorari

denied 358 U. S. 908, 3 L. Ed. 2d 229, 79 S. Ct. 235, which in

itself is in conflict with Booth Steamship Company v. Meier

and Oelhaf Company, 262 F. 2d 310 (2nd. Cir. 1958) and

the decisions of the Fourth Circuit in Calmar Steamship

Corporation v. Nacerima Operating Company, 266 F. 2d 79

(4th Gir. 1959), and American Export Lines, Inc. v. Revel,

266 F. 2d 82 (4th Cir. 1959). The instant decision of the

Court below is also in conflict with the decisions of the

Third Circuit in Hagans v. Farrell Lines, 237 F. 2d 477;

and Hodgson v. Lloyd Brasilero Patrimonio Nacional, de-

cided July 6, 1961.

In the Harrison case (supra) the Court held that, even

where an express indemnification contract exists, recovery

over against the stevedore may be denied if the negligence

of shipowner is by far the major factor in causing the in-

jury, so that it would be against public policy to shift such

a loss to the stevedore. The trial court held the United

States liable to the injured stevedore but dismissed the

Third-Party Complaint because the stevedoring company

was not negligent and the Ninth Circuit affirmed by a di-

vided Court. The majority concluded that a shipowner

r ee ee one ep

the ship

Referring to Sieracki (328 U. 8. 85, 100), the Court of

Appeals found that the obligation was directly against the

shipowner and concluded that the ship and its owner could

not be relieved of the continuous duty of keeping her sea-

worthy especially where the unseaworthiness was not caused

could not be read into the indemnity agreement because he

Petition for a Writ of Certiorari 35

did not risk breach of his contract by refusing to unload in

the face of an open and notorious condition for’ which the

officers of the ship and crew were entirely responsible. It

refused to place a premium upon unseaworthiness of the

ship and negligence by her crew and officers, saying that to

do so Would reverse the maritime policy of ages which has

even firmer foundations under modern conditions“ (245

F. 2d 911, 915).

Inthe Copp case (supra) the Ninth Cireuit denied in-

demnity on the basis that both the vessel and the stevedore

were joint tort feasors, concurrently, continuously, and ac-

tively negligent, and that such negligence on łhe part of

both was the proximate cause of the Plaintiff's injury. '

In short, the Court held that the shipowner can recover

by way of indemnity only where the stevedore is negligent

and the breach of duty is the sole proximate cause of injury

and the ship is unseaworthy but not where both are negli-

gent. i f

In Copp, the Ninth Circuit did not even mention the

somewhat inconsistent implication of American President

Lines v. Marine Terminal Corp., (supra) which was decided

by a different panel of the same Circuit only nine months

earlier. In the latter case the shipowner sought to reeover

over against the stevedoring contractor the sum paid in

settlement to a longshoreman, employed by the stevedore.

The injury was caused by the absence of a lock on some

beams in the ship. The shipowner notified the stevedore of

this condition and requested that it be repaired. The con-

tract specifically required the removal of such beams. The

unloading operation was then coatinued under the unsafe

condition which was known by both the shipowner and the

stevedore. The shipowner first tried to establis its claim

to indemnity under the authority of States Steamship Co.

v. Rothschild International Stevedoring Co., 205 F. 2d 253

(9th Cir. 1953) and Bente v. Compania De Navigacion, 213

F. 2d 397 (2nd Cir. 1954) on the ground that its liability to

the longshoreman arose only from unseaworthiness while

26 Petition for a Writ of Certiorari

the stevedore was negligent. The Ninth Circuit rejected _

that theory since the evidence showed the shipowner was

itself negligent. However, the Court granted indemnity to

the shipowner under the authority 5f the Ryan case reason-

ing that the stevedore breached its implied contractual

duty to perform in a safe and workmanlike manner by fail-

ing to remove the beam, continuing the work under known

hazardous conditions, and in piolation of the express terms

of the contract.

In United States v. Rothechild, (supra) the Ninth Cir-

cuit in a factual situation strikingly parallel to that consid-

ered by the Third Cireuit inthe Hagans case allowed i

nity on a tort theory holding that the stevedore was activ

— ͤ l

the stevedore had knowledge of a defective It held

the passive negligence of thé vessel in supplying the defeo-

tive winch did not preclude the recovery of indemnity. Since

the Supreme Court in the Ryan case did not pass on the

question of a non-contractual right of indemnity this case

still stands as authority for the recovery of indemnity on a

non-contractual basis. eh

In Reddick v. MeAllister Lines Lid., (supra) a long-

shoreman was injured when he fell from a defective wooden

crate on a ship during unloading operations. The trial

court held the ship unseaworthy, found the longshoreman

had not been farnished with a safe place to work because of

the defective crate, but allowed indemnity on the basis that

the stevedore was negligent in stowing the crates too

closely. The Second Cireuit reversed and denied indemnity

on the theory that the injury was caused by the defective

crate and that the stevedoring company’s breach of war-

ranty in loading the cargo improperly was not a cause of the

injary. Recognising that in Ryan and Weyerhaeuser this

Court held the application of tort theories of liability, Le.,

‘active’? or passive and primary or ‘‘secondary’’

Regugence inappropriate, the Court of Appeals held, never-

theless, that under the general test of foreseeability applied

„

Petition for a Writ of Certioreri 37

to contractual liability, the breach must be the cause of the

injury to impose liability on the stevedore.

The decision of the Second Cireuit in the case of Booth

“Steamship Co. v. Meier and Oclhef Co., (supra) involved

an indemnity suit by the vessel against a contractor hired

of an unseaworthy condition resulting from the presence

of defective equipment which the contractor supplied with-

out fault. The Court found that this question was not in-

volved in either the Ryan or Weyerhaeuser cases since in

each of those cases the non-discovery of the cqusc of the

" injury constituted a negligent omission of one of the par-

ties, but held that it did not believe that these cases

excluded the existence of liability without fault as an ele-

ment of the warranty of workmanlike service in appropri-

ate cases.

The case is significant, of course, because it indicates

a liability without fault theory applied to a breach of the

implied warranty to perform the service in a workmanlike

manner. It seems clear, however, that the Court restricted

the application of this theory to a situation where the con

tractor actually supplied his own equipment and a defect

in the equipment is the couse of the ensuing injury.

In Calthar Steamship Co. v. Nacirema Operating Co.,

(supra) the Court of Appeals for the Fourth Circuit re-

38 Petition for a Writ of Certiorari ©

versed the decision of the trial court that the shipowner

was not entitled to indemnity if its breach of contract was

& proximate cause of the injury. The contract between the

i ified that the operator would provide lights for

evidence showed that one of such lights

bid

;

S3 ͤ K

covery”’’. It merely held that in its opinion under the deci-

sions of the Supreme Court the limits were not transcended.

The decision in the instant case is directly in conflict

with the decisions of the Third Circuit in Hagans v. Farrell

—

Petition for a Writ of Certiorari 39

Lines, (supra) followed in Smith v. Pan Atlantic Steam-

ship Corporation, 161 F. Supp. 422 (K. D. Pa. 1957), af-

firmed per curiam 254 F. 2d 600 (3rd Cir. 1958), and Hodg-

son v. Lloyd Brasileiro Patrimonio Nacional, (supra).

In the Hagans case,.it was held that the shipowner

may not be entitled te indemnity if its breach of contract

caused the injury and the stevedore’s wrongful conduct

consisted only of failing to discover and correct the ship-

owner's breach. Hence the Third Circuit held the

shipowner was not entitled to indemnity from the steve-

dore where the injury resulted from a defective and unsea-

worthy winch which contractually was to be furnished by

the shipowner and was negligently used by the stevedore

but was not the primary proximate cause. By analogy to

Ryan the Court declared that ‘‘the promisor cannot use the

promisee’s failure to discover and correct the promissor’s

own breach as a defense (237 F. 2d 477, 482).

A petition for rekéaring was denied with two judges

(Chief Jadge Biggs and Circuit Judge Maris) dissenting

on this basis:

It would appear that the decision of this Court unduly

limits the seope of the decision of the Supreme Court

of the United States in Ryan Stevedoring Company v.

Pan-Atlantic Steamship Corporation, 1956, 350 U. 8.

124, 76 8. Ct. 232. The decision also seems to us to be

2 in conflict with American President Lines Limited t.

“= Marine Terminals Corporation, 9th Cireuit 1956, 236

F. 2d 753; of. United States v. 1

. Steve. Company, 9th Cir. 1950, 183 F. 2d 1 For

these reasons we think that the appeal should be re-

heard before the Court en bane.

“The Hagans decision was followed in Smith v. Pan-

Atlantic Steamship Corporation, 161 F. Supp. 422 (E. D.

Pa. 1957), affirmed per curiam (254 F. 2d 600), three days

short of the two months after Weyerhacuser. In the Smith

‘ ease, the stevedore’s boss permitted his men to continue

—_— wen — . —— ha. a —

e i

141111 :

| ! f 116 1 i

el alt IJ!

e Ha a

4 70 12 1 4

: if PTH i 5 u 145

Petition for 6 Writ of Certiorari 41

dence. Moreover, as if did not do in this case, the Court

examined the contract and found it required the stevedore

to “provide all necessary stevedoring labor, including

winchmen . . . and such ether stevedore-supervision as

are needed for the proper and efficient condust of the work

The Court held that:

cert. denied 364 U. 8. 864 (1960). Rather, such lan-

sion was, of course, a —— of fact 2 jury.

Weyerhaeuser F. 8. Co. v. Nacirema Operating Co.,

(e.“ (Emphasis added.)

It is apparent that the opinion below is in direct conflict

with the decision of this Court in the Weyerhacuser and

Porello cases and with the decisions of Harrison and Copp

in the Court of Appeals of the Ninth Cireuit and Reddick in

the Second Cireuit which are themselves in conflict with

other decisions of the same circuits. Moreover, the decision

in the instant case is directly in conflict with Hagans and

Hodgeon decided both before and after the instant case.

Hagens was itself declared to be in conflict with American

President Lines, (supra) and Rothschild, (supra) in the

Ninth Cireuit by Chief Judge Biggs and Judge Maris of the

Third Cirenit, (237 F. 9d 477, 483).

Upon this ground of conflict between circuits alone,

certiorari should be granted.

42 Petition for a Writ of Certiorari

Fourth Point: The Issues Involved Herein Are of Para-

mount Importance to the Survival of the Stevedor-

ing Industry and to the Entire Shipping Industry.

The questions here presented are of paramount im-

portance in the decision of longshoreman cases brought

against shipowners and involving third-party actions for

indemnity against stevedores, particularly when the con-

tract between stevedores and shi is in writing.

Settlement of the question by this is plainly in the

public interest since it is likely to be presented in almost

every such case hereafter brought, including many cases

now pending.

This decision places in grave doubt whether the express

written undertakings and limitation of responsibilities be-

tween shipowner and stevedore have any meaning. It is of

industry-wide concern that such a written contract can be

nullified by imposing the duty on a stevedore to indemnify

a shipowner for the breach of an implied warranty, by strik-

ing-down a jury finding that the express provisions of a

contract were not breached. The result reached is all the

more untenable in this case since the right of indemnity is

predicated on the assumption by the Court of Appeals that

if it was negligence on Ellerman’s part to permit Beard

to work in an unsafe place, it was equally negligent for

Atlantic to ‘handle’ the cargo in an unsafe place to work’’

(289 F. 2d 201, 207). As in Weyerhaeuser, where several

possible bases of negligence as to the shipowner existed

there is no way of knowing that the jury did in fact base its

finding of the shipowner’s negligence on an alleged ‘‘ unsafe

place to work

I the decision of the Court of Appeals is permitted to

stand the encirclement of the stevedore has been completed.

Congress passed the Longshoremen’s and Harborworkers’

Act to establish liability without fault, albeit in a lesser sum.

It thereby relieved employers of large tort verdicts. In so

doing, absolute liability was imposed upon the employer to

Petition for a Writ of Certiorari 43

provide a fair measure of compensation to its injured em-

ployee. After the Longshoremen’sAct the claim by a ship-

owner for ‘‘contribution’’ was denied where joint negligence

existed. Halcyon Lines v. Haenn Ship Ceiling d Refitting

Corp., 342 U. S. 282 (1952). Practical business considera-

tion required stevedores to enter into written contracts

pursuant to demands of the shipowners to agree to indem-

nity and hold the shipowner harmless from liability result-

ing from the negligence of the stevedore. Such a contract,

if made, is not forbidden by the Longshoremen’s Act and is

properly enforceable. Such wri contracts should be

construed cautiously and indemnity allowed only when ex-

pressly and clearly assumed. The present case holds the

stevedore liable for indemnity without limitation and with

no réference whatever to the terms of the written contract.

The result is to make a stevedore wholly liable for all

injuries to its own employees in the absence of any showing

that its work could have been performed more safely. Thus

the financial burden intended to be removed from the

shoulders of the stevedore by the Longshoremen’s Act has

been replaced, although not voluntarily assumed or clearly

justified by law or contract. Such harsh consequences can

lead to the survival of bit a few of the stevedoring firms who

possess an infallible degree of Lexpertise“ or a willingness,

backed by sufficient wealth, to become an insurer. The end

result must adversely affect the entire shipping industry.

It is: of particular importance to the stevedoring industry

that certiorari’ be granted that it may be clearly understood

whether written contracts between stevedores and ship-

owners defining the respective rights of each are to be dis-

regarded as meaningless or given the recognition intended

the parties.

CONCLUSION.

The issues involved herein are of national importance to

the stevedoring and shipping industry. The decision of the

Court of Appeals is a major departure from the rulings

: *

aa | Petition for a Writ of Certiorari

made by this Court and if allowed to stand will create

further disharmony in the uniform application of the doc- .

trines enunciated by the Court.

This decision is a sharp erosion of the Constitutional

mandate that ‘‘No fact tried by a jury, shall be otherwise

re-examined in any Court of the United States, than accord-

ing to the rules of common law.“ Unless this decision is

reversed further erosion of the mandate will surely follow.

James J. Dem, In.,

Faanors E. MansnaLL,

Counsel for Petitioner.

=o eA

“ APPENDIX TO PETITION.

JUDGMENT OF THE U. 8. DISTRICT COURT.

Before Ganzy, J.

And Now, to wit: April 28th, 1958, in accordance with

the Special Verdict of the Jury and the Direction of the

Court, it is Oxpzrzp that Judgment be and is hereby entered

in favor of Plaintiff, Leighton Beard, and against the De-

fendants, Ellerman Lines, Ltd. and The City Line, Ltd, in

the sum of One Hundred Thousand and 00/100 ($100,000.00)

Dollars, together with costs, and it is

Funr un Oxperep that Judgment be and is hereby en-

tered in favor of Third-Party Defendant, Atlantic & Gulf

Stevedores, Inc., and against Third-Party Plaintiffs, Eller-

man Lines, Ltd., and The City Line, Ltd., with costs.

By THE COURT:

Attest: R. J. Greznwoon,

: Deputy Clerk.

(ny

RID RL,

2a Order of U. 8. District Court

ORDER OF THE U. 8. DISTRICT COURT.

5 (Filed April 4, 1960.)

Now, this 4th day of April, 1960, It is Ordered by this

Court that Defendants’, Elaanuax Lines, Lru., and Tue

Orrr Linn, Lp., motion to set aside the verdict in plaintiff’s

favor and to enter judgment in their favor, and their mo-

tion for a new trial be, and the same are hereby, denied.

/8/ J. Cb Gaxer, Ch. J.

1. Reddick v. McAllister 3 vet al., 288 F. 2d

297 (CA. 2 1888) and ene see Gindville v.

American-Hawaiian Steamship Co., 224 T. 2 2d (C. A. 3, 1955).

—

Opinion of U. S. Court of Appeals 3 3a

OPINION OF v. 8. c. A. 3.

— —

UNITED STATES COURT OF APPEALS

For tHe TAD Circuit.

No. 13,278.

LeicHTon Bearp

Everman Lives, Liv., and Tue Crry Live, Lob.,

Appellants,

ATLANTIC AND Guir Srevepores, Inc.

Ap®ta From tue Unrrep States District Court ron THE

Eastern District or PENNSYLVANIA.

Argued October 18, 1960.

Before McLavucuuin, KaLopner and Hastir, Circuit Judges.

- OPINION OF TH COURT.

(Filed April 7, 1961.)

By Katopyer, Circuit Judge. ‘ &

The plaintiff, Leighton Beard, brought this civil ac-

tion, founded upon tlie diversity jurisdiction of the Dis-

trict Court,! against the defendants, Ellerman Lines, Ltd.

1. Plaintiff is a citizen and resident of Pennsylvania; defendants

Se — are British corpo-,

rations. ;

4a Opinion of U. S. Court of Appeals

the result of Atlantic’s negligence in discharging the cargo

und in using devices which were ‘‘dangerous and im-

The District Court entered judgment i

Y the jury’s special findings in favor of Beard against Eller-

man and in favor of Atlantic against Ellerman in the third-

i denied

party proceedings. It Ellerman’s alturnative

motions to set aside the in Beard’s favor or for a

Opinion of U. 8. Court of Appeals 5a

record sustains a finding of negligence in the discharge of

the cargo.

The District Court did not file m opinion and it is

necessary for that reason to set forth the facts in some

detail :

July 1, 1955, the City of Caleutta docked at a

pounds, had been compressed under tremendous pressure

and cireled with four parallel one-inch steel bands fastened

together with a patented clip, or buckle. Sixty-three tons

the bales, consigned to New York, were stowed in the

orward end of the hold, which, by reason of the shear of

the vessel, extended out halfway into the square of the

hatch; and 100 tons gt 4, consigned to Philadel-

bales

and three was no separatiofi between them except for their

[Fu

;

741

6a ˙ Opinios of U. S. Court of Appeals

not touched. There was enough space between the top

tier of bales and the underside of the tween deck for the

longshoremen to walk into the wings, and as a draft was

hoisted they retreated into them.

At about 4.30 P. M. (three hours after the unloading

had begun), when two tiers of the Philadelphia cargo had

been discharged, a draft of three bales was attached to a

set of burlap hooks by the longshoremen. These bales were

in a row in the offshore wing under the coaming with ap-

proximately 12 Teet of space above. As the draft, in the

course of its hoisting, neared the coaming of the main deck

hatch the middle bands of one of the bales broke and when

the entire weight of the bale was placed upon the other

band it too broke, and the bale dropped onto the New York

bales, bounced off, bounded across one-half of the hatch,

then some 20 to 25 feet astern of the after coaming, and

struck ere pinning him against the after bulkhead.

taken to the hospital where his right leg

ve the knee. He was 41 years old at the time.

The facts, as stated, are not in dispute, nor is there

any question presented here with respect to the amount of

the jury’s award of damages to Beard. ;

ä There was considerable testimony at the trial, expert

and otherwise, that it was the custom in Philadelphia to

use bale hooks in discharging bales similar to the type

bere involved, known as gunnies ; that the Safety Rules

‘for the safe handling of cargo, prepared ‘by the Philadel-

Donald Quinn chief officer of the City of Caleutta“ that

Quinn had observed the manner in which the vessel's cargo

of bales of wool as well asthe bales of burlap were being

‘discharged by Atlantic’s men and that they were going

quickly”; that Quinn had told one of Atlantic’s men

‘Sith a bit of authority” that he thought the use of bale

4 ’

Opinion of L. S. Court of Appeals v

hooks in discharging the bales of wool was a dangerous

way of discharging and that he was informed it was

‘the custom of the port’’. Quinn also said that he had

explained to Atlantic’s men that in India they get

wire slings and put them around the bales so that each

individual bale has a wire around it, and as they hold it

tight, the wire tightens around ii.

Quinn, however, did not Atlantic’s men to dis-

continue their method of discharging the bales. There was

expert testimony that the chief mate is responsible for the

safety of personnel engaged in €argo operations and that

his authority outranks the stevedore boss.

An expert metallurgist who had tested steel bands

similar to those used here testified that in his opinion the

particular bands on the bale that broke and struck Beard

had something wrong with the materials

The foregoing presents the factual situation as pre-

sented to the jury.

On this appeal Beard contends that the jury’s finding

of unseaworthiness is amply supported for these reasons:

Ellermann had actual and constructive knowledge that

the burlap bales would be hoisted out of the hold by use

of hooks inserted under the bands of the bales’’, and, IN

was therefore charged with the absolute duty of supply-

ing bands to permit that’ activity to be accomplished in

reasonable saf ; in the instant case the bands were

inadequate’’, and the burlap bales created an unseaworthy

condition because they were not capable of ‘‘being han-

dled for the purpose of loading and discharge’’ by the

bale hook method customary in Philadelphia.

Beard further contends that the jury’s finding of

negligence on Ellerman’s part was supported by the testi-

mony that Ellerman had failed to provide him with a

‘*safe place to work’’ in that (1) Ellerman breached its

duty to nse reasonable care to ascertain the methods and

mapner in which the work was done and to forbid the use

of a method which was hazardous to his [Beard’s]

safety and the failure of the qhiel mate to teks effective

8 as

Pe eg Oe Ne A Oe eee ee

* of U. 8. Court of Appeals

115

110

112

ual

1140

3 f

11115

3 gi

112

Opinion of U. 8. Court of Appeals 9a

safe place to work in view of Ellerman’s failure to dis-

charge the New York bales at that port and their position

with relation to the bales which were being discharged at

the time of the accident.

Interrogatory No. 2 which presented to the jury the

issue as to whether Ellerman was negligent reads as

follows:

a te negligence on the part of Ellerman Lines,

Ltd., Which was a substantial factor in causing in-

juries to the plaintiff?’’

The jury’s answer to the interrogatory was Ves“.

In disposing of Ellerman’s appeal from the jury’s

finding that its negligence was a substantial factor in

causing injuries to the plaintiff’’, we are required only to

determine whether there was substantial evidence adduced

at the trial with respect to any one of the three theories

tial basis for a finding that Beard’s injuries were caused

by somebody’s negligence in the discharge of the burlap

bales this extraordinary situation presents itself:

Says Nera, in its rief::

„We dispute that Ellerman was negligent and assert

rather that the negligence here was solely that of the

stevedore (Atlantio).” -(Ellerman’s emphasis.)

4. Page 22 “Brief for Appellant”.

108 Opinion of U. 8. Court of Appeals

That statement was made in consonance with Eller-

man’s position that Atlantic was in full control of the

discharging of the cargo; it was an ‘‘expert in the field’’;

It was Atlantic’s method of pulling out the cargo, not

Ellerman’s’’; ‘‘Ellerman would not be negligent for fail-

ing to either supervise or take over and itself perform

“the details of the work’’; and, while Atlantic’s negligence

would make Ellerman liable to Beard, Ellerman was thereby

entitled to indemnity from Atlantic under their contract

for stevedoring services because of Atlantic’s ‘‘sub-stand-

ard“ performance.* |

Atlantic, replying to Ellerman’s contention here that

the jury’s finding of negligence on its part was incon-

sistent with ite finding, in answer to Interrogatories Nos.

4 and 5, that. Atlantic was free of fault, made this state-

ment in its brief: :

‘‘Appellant [EHerman] conveniently fails to acknowl-

edge that other issues were submitted upon which the

Jury could properly have found negligence on the part

of the shipowner. Plaintiff, through his counsel, con-

tended that Ellerman was negligent in failing to pro-

vide Plaintiff with a safe place to work. Evidence

was offered which established that certain New York

cargo was not removed at that port, was stowed in

a position exposed to this unloading operation and

was the very means by which the falling bale was

4 The Jury could properly find and by its verdict

undoubtedly did find that Ellerman was guilty of negli-

Opinion of U. S. Court of Appeals lla

gence in stowing the New York cargo with the Phila-

delphia cargo in the center of the hatch opening.

From the description of the accident by all the eye-

witnesses, it is clear that the accident would not have

occurred had the falling bale not struck the New York

cargo and rolled under the coaming against Beard.

(emphasis supplied).

In view of what has been said it is unnecessary for us

to discuss in detail all the evidence relating to the issue of

negligence. We have but to say that the record affords am-

ple basis for the jury’s finding that Ellerman was negligent.

For example, there was evidence that bands of bales

„broke in roughly between 3 and 5 percent of the bales

during discharging operations.’ It is true that there was

considerable testimony, as earlier stated, that it was the

custom in Philadelphia to use bale hooks in discharging

burlap bales and that the method was approved by the

Philadelphia Marine Trade Association, but as we held in

Curtis v. Carcia Y Cia., 272 F. 2d 235, 237 (1959) ‘‘such

oustom, though it may be evidence of reasonableness, is not

carrie and the jury may find, if there is sufficient

the testimony, that the customary method does not

tia the standard of reasonable care.

Further, there was testimony by Ellerman’s own chief

mate, Quinn, earlier referred to, that in his opinion the use

of bale hooks ‘‘was a dangerous way of discharging’’, and

that he had ‘‘explained’’ to Atlantic’s man that in India,

in handling burlap bales they used the sling method.

On the score of Quinn’s testimony it must be said that

his failure to take effective measures to stop the use of the

discharge method which he condemned as dangerous“,

would constitute negligent conduct for which Ellerman was

liable in the event of a jury finding that the discharging

procedure was in hot dangerous“, as he deemed it to be.

* Testimony of Captain William Wheeler, associated with a firm

of marine consultants.

12a Opinion of U. 8. Court of Appeals .

Allso, there was testimony that those engaged in the

task of discharging the bales were exposed to a hazardous

situation, by virtue of the stowage of the New York bales

with respect to the bales which were being unloaded, and

thus were not afforded a ‘‘safe place to work’’, which is, of

+ course, negligence on the part of those responsible. The

testimony on this score, as earlier stated ,was.deemed ample

by Atlantic, an expert in the field, to sustain a finding that

Elerman had failed to provide ‘‘a safe place to work’’.

It is settled law that Ellerman owed to Beard the obli-

gation to provide him with a safe place to work, and its

failure to do/so constituted negligence:

It is equally settled that Ellerman was under a duty to

which complied with the standard of reasonable

distharge of its cargo, and to forbid the use of a

e e e, eee whieh did

not conf to a standard of reasonable care.

work of the s service’ , as ee sarge he

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

scat Gera as Ce elk tb eee bl

negligent) and 4 (in which Atlantic was absolvéd from lia-

bility over to Ellerman), it is not one which aide Eilerman 4

in Beard’s action against it. In answering Interrogatory

No. 2, the jury was determining the issue of negligence

between Beard and Ellerman. In answering Interrogatory

No. 4, the jury was determining, necessarily, the contractual

obligation of Atlantic to Ellerman. The issue for us on

appeal with respect to this Interrogatory is whether as a2

matter of law Atlantic can be relieved of its contractual

obligation in any circumstance of this case. The fact, that

the jury believed either that the contractual obligation of

Atlantic to Ellerman did not coincide with the duty of Eller-

man to the plaintiff, or that Atlantic-properly discharged

its contractual obligations, if erroneous, would not require

that we reverse the finding of liability as between the plain-

r v ——

Opinion of U. S. Court of Appeals 13a

tiff and Ellerman, if that finding is supported by the evi-

dence, as we have found that it does.

What has been said brings us to Ellerman’s contention

that if it ‘‘is liable to Beard upon a theory of negligence

the undisputed evidence required the District Court

to enter . . . judgment in Ellerman’s favor [against At-

lantic] because it was clearly Atiantic’s action which

brought about the result and clearly it constituted a breach

of a warranty of workmanlike service.“

Our consideration of Ellerman’s 5 is con-

trolled by the principles recently summarized in Waterman

Co. v. Dugan & McNamara, 364 U. §. 421, 423 (1960), as

follows:

In Ryan Co. v. Pan-Atlantic Corp., 350 U. S. 124, it

was established that a stevedoring contractor who

enters into a service agreement with a shipowner is

liable to indemnify the owner for damages sustained as

a result of the stevedore’s breach of his warranty to

perform the obligations of the contract with reasonable

safety. This warranty of workmanlike service extends

to the handling of cargo, as in Ryan, as well as to the

lise of equipment incidental to cargo handling, as in

Weyerhaeuser S. S. Co. v. Nacirema Co., 355 UI. S. 563.

The warranty may be breached when the stevedore’s

negligence does no more than call into play the vessel’s

unseaworthiness. Crumady v..The J. H. Fisser, 358

U. S. 423, 429. (emphasis supplied).

Application of the principles stated to the indemnity

action compels the determination, under the particular facts

here and the jury’s finding with respect to Ellerman’s neg-

2 ligence, that Ellerman is entitled to indemnity- from At-

lantic as a matter of law.

As already pointed out, the record affords ample

basis for a jury fact-finding that (1) use of the bale hook

method in the discharge of the burlap bales constituted

negligence, and (2) that the injured longshoreman was

not afforded a.safe place to work. :

: \

om *

144 Opinion * S. Court .

Atlantic eee that the jury's finding that Ellerman

was negligent was based on its failure to provide a safe

place to work in view of the fact that the New York

cargo ‘‘was stowed in a position exposed to this unloading

operation and was the very means by which the falling

bale was catapulted against Beard’’, and says that the

jury could properly have found negligence on the part of

the shipowner’’ in this situation, and it is clear that

‘the accident would not have occurred had the falling bale

not struck the New York cargo and*rolled under the coam-

ing against Beard. (emphasis supplied.)

- Atlantic hoists itself on its own petard in stating that

the evidence established that the New York stow, as

positioned when the Philadelphia bales were being dis-

charged, created an unsafe place to work

Under the principles above stated, the ‘‘warranty of

workmanlike service to perform the obligations of the con-

tract with reasonable safety’’, extends’ to the handling of

the cargo, and thus if it was negligence on Ellerman’s

part to permit Beard to work in an unsafe place, it was

equally negligent for Atlantic to handle the cargo it

charged, created an unsafe place to work.

It was Atlantic’s conduct in proceeding to unload

cargo in an unsafe place to work which called into play

the unsafe condition whicl*prevailed, and under Crumady

v. The J. H. Fisser, supra, it breached its warranty to

Ellerman.

What-was said in American President Lines v. Marine

Terminals Corp., 234 F. 2d 753, 759, 60 (9 Cir. 1956), cert.

den. 352 U. S. 926, is significantly applicable here:

. . We are not concerned here with a situation in

which the stevedore’s breach of duty brings about the

injuries by operation upon a prior condition caused

by the Shipowner’s negligence which is unknown to

the stevedore. Here the stevedore was fully informed

of the fagt and of the possible consequences of the

shipowner’s negligence . . . and in face of all that

J 2

Opinion of U. S. Court of Appeals 15a

proceeded to breach its duty so as to make that negli-

gence an immediately dangerous force . . .[I]t was

the stevedore’s breach of duty th that created the danger

and made it an active condition with immediately

diane consequences of personal injury.“

The expertise“ of Atlantic i in the handling of cargoes

‘should have made it aware of the dangers inherent in the

¢ discharge of the Philadelphia bales in view of the presence

“ol the New York stow. If a jury eould properly find’’,

as Atlantic urges, that Ellerman was negligent in permit-

ting the discharge under the circumstances which pre-

vailed, because of their obvious dangers, it certainly fol-

lows that Atlantic, an expert in the field of handling cargo,

should have shown an awareness of the situation and

taken steps.to avoid that which happened or refused to

proceed with the discharge of the cargo until the site of

discharge was made a safe place to work.“

„It must here be noted that the District Court in its

charge to the jury with respect to the indemnity action

failed to instruct it that if Atlantic carried on the dis-

charge of the Philadelphia bales in a place unsafe to work

that it was guilty of a breach of its ‘‘warranty [to Eller-

man] to perform the obligations of the contract with rea-

sonable safety.

The District Court erred in this respect and to its

error may be attributed the fact that the jury, in its an-

swer to Interrogatory No. 4 acquitted Atlantic of ‘‘any

failure . . . to do its work in accordance with its con-

tractual obligation.

Further, in its charge to the jury the District Court

prescribed the ‘‘criterion’’, as it put it, of Atlantie's per-

formance of its contract, as follows:

‘¢You will have to decide whether or not there was an

unreasonable discharge of this. cargo, an unsafe

method used in the discharge of this cargo, in the

placing of the hook.

16a Opinion of U. S. Court of Appeals

The phrasing of this instruction was such that it made

the sole ‘‘criterion’’ of the jury’s test as to whether At-

lantic had breached its contract of ‘‘workmanlike service“

in-the use of the bale hook method in discharging the cargo.

The error of this instruction, as well as the error

committed when the District Court failed to instruct the

jury that it was a breach of Atlantic’s contract to carry

on the discharging operation in an unsafe place to work,

was further compounded by a last-minute instruction to

the jury, following conclusion of the charge in chief, and

just before the jury retired. The instruction referred to

follows:

If you find that Atlantie & Gulf Stevedores, Mr.

Marshall’s client, was unloading the bales in a proper

and safe manner, using a method that was in accord-

_ ance with the practice, customs, and usage in the

Port of Philadelphia, and that that was not in ‘viola-

tion of their breach of contract which obtained be-

tween them, hen your verdict must be in favor of the

Atlantic c Gulf Stevedores.’’ (emphasis supplied.)

It may be noted that exception was taken to this in-

struction by Ellerman.

In summary, we are of the opinion that the testimony

adduced afforded ample basis (as Atlantic itself says) for

a jury finding that the discharge of the Philadelphia bales _

was carried on in an unsafe place to work and while that

finding made Ellerman liable to Beard it also made Atlan-

tic liable, as a matter of law, to Ellerman for indemnity

for its breach of warranty as previously detailed.

The opinion stated makes it unnecessary for us to

consider the issue of unseaworthiness which was premised .

on Beard's view that the doctrine of unseaworthiness ex-

8. Hudgins v. Gregory, 219 F. 2d 255 (4 Cir. 1955).

—

wey es enw

—

Opinion of U. S. Court of Appeals 17

tends to the packaging of the ship's cargo; and that the

cargo in the instant case was ‘‘unseaworthy”’ by reason

of the ‘‘inadequacy’’ of the steel bands used to bind the

burlap bales.

For the reasons stated the judgment of the District

Court in favor of the plaintiff Leighton Beard and against

the defendants, Ellerman Lines, Ltd. and The City Line,

Ltd. will be affirmed, and the judgment in favor of the

third-party defendant, Atlantic & Gulf Stevedores, Ine.

and against the third-party plaintiff, Ellerman Lines, Ltd.

and The City Line, Ltd. will be reversed, and the cause

remanded with directions to the District Court to proceed

in accordance with this opinion.

9. It may be noted that plaintiff relies in this respect on the hold-

ing of the Second Circuit in Reddick v. McAllister Lighterage Co.,

258 F ee S. 908 where it was said

(p.

the

oe _ the holding of unseaworthiness may also be predicated on

latent defect in the cargo crate But see Carabellese v. Naviera

Aznar, S. X. 285 F. 2d 35 (1960) where the Second Circuit limited

Reddick to its particular facts and said it was “not disposed” to extend

the doctrine of unseaworthiness to include “cargo safe to handle”.

18a Order of U. S. Court of Appeals

ORDER OF U. 8. C. A. 3 DENYING PETITIONS

FOR REHEARING. -

ji - ON

UNITED STATES COURT OF APPEALS

For tae Tarp Cncurr.

No. 13,278.

LeichHTon Bap

Exvterman Lines, Lro., Ax D Tue Crry LINE, Lryu.,

: v.

Arlax ric anp Gul Sreveporgs, Ixc,

SUR PETITION FOR REHEARING.

— 5 te

Present: McLavenums, Katopner and Hastie, Circuit

Judges.

Arter Dun ConsIDERATION THE Prrrrioxs ror ReHeart-

ING IN THE ABove-ENTITLED Case Anz Heresy Deniep.

By THE COURT,

Katopner, Circuit Judge.

Darxo:

May 31, 1961.

Order of U. S. Court of Appeals 19a

ORDER OF U. 8. C. A 3 STAYING ISSUANCE

OF MANDATE.

UNITED STATES COURT OF APPEALS -

For tHe Tun Cncurr.

No. 13,278.

Leicuton Bearp

Evierman Lines, Lrp., anp Tue Crry Linz, Lry.,

- Appellants,

Arlax ric & Guur Steveporss, Inc.

Present: McLauvcuuin, KALOnxEA and Hastie, Circuit

Judges.

It is ordered that issuance of the mandate in the above

case be, and it is hereby stayed until August 4, 1961.

By THE COURT,

Kavopnes, Circuit Judge.

June 9, 1961.

20a Judgment of U. S. C. A. 3

JUDGMENT OF v. 8. o. A. 3.

UNITED STATES COURT OF APPEALS

For tHe Tump Ciscurr

No. 13,278

LEIGHTON BEARD

24 v.

ELLERMAN LINES, LTD., asp THE CITY LINE, LTD.,

Appellants,

ATLANTIC & GULF STEVEDORES, INC.

Ox Arr. . THe Unrrep Srates Disrmor Court ron

THe Eastern District or PxxNSTLVANIA.

Present: McLavenix, Katoprer and Hastie, Circuit

Judges.

This cause came 1 from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in favor of the plaintiff Leighton Beard and

against the defendants Ellerman Lines, Ltd. and The City

Line, Ltd., be and the same is hereby affirmed, with costs ;

and the judgment in favor of the third-party defendant,

Atlantic & Gulf Stevedores, Inc. and against the third-

party plaintiff, Ellerman Lines, Ltd. and The City Line, Lid.

be, and the same is hereby reversed, with costs; and the

nnn

with the opinion of this Court.

Arrest :

Ipa O. Cxxsxorr,

Clerk.

April 7, 1961

% Wee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.