Petition for Rehearing — Guzman v. Pichirilo

9

Lipari RY

JAMES R 8

Uttice- tene vu .,

ict.

AUG 25 196!

NANG

— —

Clark

Supreme Court of the United Su

October Term, 1961

N 5 8

LAUREANO MAYSONET GUZMAN,

PETITIONER.

v.

N RAMON RU 12 PICHIRILO.

285 E RESPONDENT.

gt ; *

PETITION FOR WRIT OF CERTIORAEI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

*

MX -GotpMan

z P. O. Box 9314

Santurce, Puerto Rico

Counsel for Petitioner

vr

Harvey B. NacHMan

Stan ey L. FELDsTein

Of Counsel.

2 /

Blanchard Printing Company. Boston. Mass. — Lew Printers

: INDEX #

oe

Page

Opinions Below ................. —＋ã2»%ẽ⁊ͤ4lk 3

))) Se Oe 2

Questions Presented ................. 3 nog

Statutes Involved .............. senses N 1

Statement of The Case ........:....:- = ee 4

Reasons Relied On For Granting The Writ:

A. The Court of Appeals for the First Circuit Has

Decided a Federal Question Directly In Conflict

With Decisions of Other Courts of Appeals and

Other Federal District Courts. 3 7

B. The Court of Appeals for the First Cireuit Has

Decided a Question of Admiralty and Maritime

Law in Conflict with the Authoritative Decisions

%% ² ̃—ͤt„u:i ia Agee As 10

. ] ¾ imm] 0a 0b hw ds 5A heed eed ees une 14

Appendix — Opinion of the Court of Appeals 3 15

Cases CITED

Alaska S.S. (“o., Inc. v. Petterson, 347 U.S. 396, 74 8.

Ct. 601, 96 1. Bad. 708... #. 55525 322200 ine 12

The Barnstable, 181 U.S. 464, 21 S. Ct. 684, 45 L. Ed.

6) oh Senna te Caskey tiene 11

Burns Bros. v. The Central R.R. of New Jersey, 202

F. 2d 9100. . .. .. . . . . .. .. .. 8

Cannella v. Lykes Bros. S. S. Co., 174 ie 794, eerti-

orari denied, 338 U.S. 859, 70 S. (t. 102, 94 L. Ed.

!: ⁵¼ dd . 7,8

The China, 74 U.S. (7 Wall.) 53, 19 L. Ed. . 11

Crumady v. The Jouchim Hendrik Fisser. 358 U.S. 423.

79 S. Ct. 445, 3 L. Ed. 2d 4122323. 11. 12

Grillea v. Cuited States. $2 F. 2d 919 7, 8, 9, 10

Leotta v. S. S. Esparta, 188 F. Supp. 168 ............ 9

McAllister v. United States, 348 U.S. 19, 73 S. Ct. 6,

// ee eae . wk a ha Wd 13

2 *

ii 1 ye

Page

Mahnich v. Southern Steamship Co ., 321 US. 96, 64 S.

OR OOD, OL, TO / ⅛ —˙Üwtil signs 2

The Malek Adhel, 43 U.S. (2 How.) 210, 11 L. Ed. 20 11

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct.

Wat a To oii dh os bh nkb ok kink cs 13

Noel v. Isbrandizen Company, 287 F.2d 783 ........ i, 50 {

The Palmyra, 25 U.S. (12 Wheat.) 1, 6 I. Ed. 53) ..

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 8. Ct

K.. —Ujn SAS RE: &..: 12

Queen of the whe: dy 180 U.S. 49, 21 8. Ct. 278, 45 J.

„ EET Pe ee 3

Reed v. United States, * U.S. (1 Wall.) 591, 20 I. Ed

—r.,. mn hs oa oe RPE 14

Reed v. The Yaka, 183 F. Supp. 69 ................. 9, 13

Rogers v. United States Lines, 347 U.S. 984, 74 8. (it.

K ¼ VV ͤ K 8 12

Ryan Stevedoring Co., Inc. v. Pan Atlantic S. S. Corp.,

350 U.S. 124. 76 8. Ct, 232, 100 I. Ed. 133. 9, 12

Seas Shipping (. v. Sieracki, 328 U.S. 85, 66 S. Ct.

. OD . 9. 12

‘United New York and New Jersey Sandy Hook Pilots —

Ass'n. v. Halecki, 358 U.S. 613, 79 S. Ct. 517, 80 S.

// ˙ůmAA oe pee 12

Vitozi v. Balboa Shipping Co., 163 F.2d 286 ......... 7

Vitozi v. S. S. Platano, 1950 A. M. C. 1686 ............ 8. 9

The Western Maid, 257 U.S. 419, 42 S. (t. 159. 66 L

—!! peer panne ae aes Pia weus new cab cedeeowaks 8, 11

Sratvres

Constitution, Article 3, See. 2....................... 3

Longshoremen's and Harbor Worker's s Compensation

At Tile BURO 606 | 7,13

Puerto Rico Workmens’ Accident (Compensation Act,

1 en, OE mA ˙ SS 4, 13

— —— —

October Term, 1961

— 0

eee No.

\ “, - “J

LAUREANO MAYSONET GUZMAN,

PETITION ER,

RAMON RUIZ PICHIRILO,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

ok THE FIRST CIRCUIT.

—*

To The ‘Honorable The Chief Justice and The Associate

Justices of The Supreme Court of The United States.

‘ . 2

The petitioner, by his connsel, Max Goldman, respectfully

pefitions this Honorable Court to issue a writ of certiorari

to review the judgment of the United States Court of Ap-

peals for the First Cirtuit which reversed the decree in

favor of petitione dismissed petitioner’s libel filed in

the United States District Court for the District of Puerto

Rico, and in support of hié petition, does show:

1. The opinion of the United States Court of Appeals

for the First Circuit is not reported as of this date, and is

2 = 5

appended berete at pages 15-21 infra. The opinion of the

United gates District Court for the District of Puerto Rico

was not reported and appears im the certified record at

pages 56-58. —

2. The judgment of the United States Court of Appealx

for the First Circuit vacating the judgment of the District

Court of Puerto Rico and remanding for entry of a jud-

ment of dismissal is dated May 29, 1961.

Jurisdiction

The juriediction of this Honorable Court to review by

way of writ of certiorari is based on United States. Code,

Title W N 1254(1) and 2101 (e) and Supreme Court

Rules, Rule 19, Subsection 1(b). :

Questions Presented

3. The questions presented for review are:

4 1. Is a vessel in the possession and control of a demise

charterer liable tn rem for injuries to a longshoreman

caused by the unseaworthiness of the vessel, if the unsea-

worthy condition is created while the demise charterer ix

in possewsion and control!

A 2. Isa vessel in the possession and control of a demise

charterer liable in rem for injuries to a longshoreman

caused by the unseaworthiness of the vessel, if the unsea-

worthy condition is created while the demise charterer ix

in possession and control, and if the demise charterer i-

also the stevedore-employer insured under a system of

workmen's compensation !

These questions comprise other issues e.g.: whether u

vessel may be liable m rem for unscaworthiness if there is

—

3

no iw personam liability on the part of the owner or demise

charterer; whether the longshoreman’s right to u seaworthy —

vessel is extinguished hy his employer becoming the demixe

charterer; whether the shipowner’s duty to furnish a sea-

“ worthy vessel may be contracted away by the device of a

demise charter; and, whether the stevedore-employer can

avoid the obligation of indemnifying the shipowner for an

unseaworthy condition that he, the employer, creates by

_acquiring the vessel under a demise charter.

B. Does the Court of Appeals have the power to re-

verse findings of fact, based in whole or in part upon the

credibility of witnesses, in an admiralty matter on its own

independent reading of the record?

Necessarily contained in this question are the subsidiary

questions of whether an appeal in admiralty is a trial de

noro and whether a Court of Appeals has the right to re-

verse the District Court's findings if not elearly erroneous.

4. The constitutional provisions involved are:

United States Constitution, Article 3, Section 2:

»The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, .

the Laws of the United States, and Treaties made,

or which shall be made, under their Authority ;—to

all Cases affecting Ambassadors, other public Minis-

ters and Consuls ;—to all Cases of admiralty and

maritime Jurisdiction ;—to Controversies to which

the United States shall be a Party;—to Contro-

versies between two or more States ;—between a

State and Citizens of another State ;—between Citi-

zens of the State claiming Lands under Grants

of different States, and between a State, or the Citi-

a

*

zenx thereof, and foreign States, Citizens or Sub-

jects,”*

The statute involved is:

Laws of Puerto Rico Annotated, Title 11, Séction

~ 21:

When an employer insures his workmen or em-

ployees in accordance with this chapter, the right

herein established to obtain compensation shall be

the only remedy against the employer; but in case

of accident to, or disease or death of, the workmen

or employees not entitled to compensation under

this chapter, the liability of the employer is, and

shall continue to be, the same as if this chapter did

not exist.“ :

Statement of the Case

roman, was injured on board

n registry, when the shackle

it to fall and strike him on the

The petitioner, a longsh

the M/V Carin, of Domini

on the boom broke causi

head. He sustained severe and permanent injuries. Suit

was commenced in the United States District Court for the

District of Puerto Rico, in Admiralty, by a libel filed on

December 5, 1958.

Jurisdiction was based on the admiralty and maritime

jurisdiction of the United States and both in rem and in

personam remedies were sought against the vessel and the

owner. The vessel was seized, pursuant to lawful process

on December 10, 1958. The vessel and owner appeared on

December 23, 1958 by filing a claim in the form of a motion.

In the answer, the respondents averred that the vessel

had been ‘‘chartered** to Bordas & Co., of San Juan, Puerto

3

‘Rico, the stevedore employer of the petitioner. The af.-

firmative defenses alleged, inter alia, the receipt of com-

pensation by petitioner, and the charter and surrender of

control of the area wherein the accident occurred.

“Introduced into evidence at the trial was a deposition of

the master, a Dominican, who characterized himself as an

employee of the respondent and refgrred to the stevedore

as a third-party, incorrectly translating its name into

Spanish. Aside from a physician, the only witness who

appeared for the respondents was the principal officer of

the stevedore employer. He testified :

. Will_you please state your connection with

Ruiz Pichirilo in this ease? A. He has been a busi-

ness relation of.ours for —_ ee We have been

managing and operating the “Carib” for around five

years. He lives in the 3 Republic.“ (R. 51).

At the close of all the testimony, respondent’s proctor

requested time to file a memorandum based on the defense

that Eamon Ruiz Pichirilo was not liable because he had

no control of the vessel. Thereupon the following colloquy

took place : 3

The Court: Of course, you know pretty well the

doctrine in Admiralty that there is a non-delegable

duty, no matter who was managing this thing, or o

was paving” for the payroll and expenses and every-

thing. Mr. Bordas clearly stated that the boat belongs

to Pichirilo, and if Pichirilo isn’t coming here it is

because he can not leave the Dominican Republic, but

he is the owner, the operator of the boat.

„Mr. Rodriguez: No, the owner, not the operator.

The operator is Bordas and Company.

The Court: That may be what you think, but 1

don’t believe that Bordas is the operator of the boat.

(R. 55).

No contracts, charter parties nor any other document

corroborating Bordas’ interest in the vessel was offered.

In its opinion the District Court stated that it could find

no lawful basis for holding that the vessel was under a

demise charter (R. 57) and in ite findings found that the

ownep was in possession and control of the M/V Cane.

(R. 58).

The United States Court of Appeals did not question

the fact that the vessel was unseaworthy. The reversal

was predicated upon this Court's interpretation that the

evidence showed a demise charter by parole and could

admit no other interpretation. A demise charterer being

pro hac vice the owner, the Court of Appeals reasoned,

the true owner could not be liable in persona. Despite

the fact that the demisee created the unseaworthy condi-

tion, it could not be liable is personam because as ateve-

dore-employer it was insulated by the exclusive remedy

provisions of the Workmen’s Accident Compensation Act

of Puerto Rico. —

The Court of Appeals then held that a vessel could not

be liable i» rem, if there were no in personam liability, even

it the vessel were unseaworthy and it ordered the dismissal

of the libe.

Inn its opinion, the Court of Appeals for the First Circuit

frankly admitted that its holding was directly in conflict

with decisions of other United States Courts of Appeals

ee other United States District Courts.

7

Argument

A. Tue Court or Appeats ron Tae First Crevrr Has Dr-

on a Feperat Question Dimectiy im Conruict wirn

Decisions or Orner Covets or Apprats axp Orner

Feverat District Covrts.

The decision of which review is sought is irreconcilable a

with three decisions of the United States Court of A

for the Second Circuit.

_ Grillea v. United States, 1956, 232 F2 919,

Burns Bros. v. The Central R.R. of New Jersey, 1953,

202 F.2d 910. 8

* Cannella v. Lykes Bros. S. S. Co., 1949, 174 F2 794,

certiorari denied, 338 U.S. 859, 70 S. Ct. 102, 94

L. Ed. 526. :

Despite the reliance npon the decision as authority, it ix

submitted that the opinion of the court below is irreconcil-

able with the decision of the United. States Court of Ap-

peals for the Fourth Circuit in_Noel v. Isbrandtsen Co.,

1961, 287 F2 783. |

Chronologically, the first case involving some of the

precise issues involved in the case at bar was Vitozi v.

Balboa Shipping Co., 1 Cir., 1947, 163 F2d 286, wherein it

was held that an owner who had surrendered control by a

demise was not liable in personam for unseaworthiness.

Libellant, in that case, a longshoreman, later filed an

in rem action against the vessel in the Southern District

of New York. That case was dismissed upon the ground

that the demisee was the stevedore-employer whose liability

uader the Longshoremen’s and Harbor Worker's Com-

pensation Act, 33 U.S.C. 905, was exclusive and the vessel,

oo

8

being hi- under the demise, wax not a third person within

the meaning of the statute.

Vitogi v. &.. Platano,D.C.S.D.N.Y., 1948, 1950 A. M. C.

1666. me

At least insofar as unseaworthy conditions which arose

prior to the demise, the Second Cireuit held just the op-

posite from the Fir@Circuit’s decision in Vitozi and this

Court acemingly concurred by refusing to grant certiorari.

: ‘Cannella . 3 Bros. S. S. (o., 1949, 174 F2d 794,

certiorari denied, 338 U.S. 859, 70 8. Ct. 102, 94 J.

Ea. 526.

In Burns Hros. v. The Central N. H. of New 1 1953,

202 F2d 910, the Second Circuit held that even though no

in personam liability attached to an owner out of possession

fer collision damage caused by negligent navigation, the

vessel was nevertheless liable for the damages in rem.

Moreover, Judge Hand, after tracing the historical de-

velopment of in rem actions, concluded that a prior favor-

able decree in ‘personam would not bar a subsequent action

in rem, if the i 7 remedy were unavailable at the ting?

the in per. ‘suit was brought. :

All of the issues presented in the instant case were pre-

sented in (ivillea v. United States, 2 Cir., 1956, 232 F2d

919 and Judge Learned Hand decided each of them exactly

contrary to decision now rendered by the Court of Appeals

for the First Circuit. In Grillea, the respondents asserted

that to maritime lien could be imposed where no jural

person is liable in personam, citing, just as did the court

below, The Western Maid, 257 U.S. 419, 42 S. Ct. 159, 66

I. Ed. 299. Judge Hand held that the decision in that

ease was altogether foreign to the case of private wrongs.

Thus we have a sitnation existing wherein on the identical

operative facts a longshoreman can recover for injuries

cauged hy unseaworthiness in the Second Cireuit and in

the First Cireuit he can not.

Sinee the decision in Grillea, the precise questions in-

volved herein have arisen in two other District Court cases

nan ae Se Sees Reet Se tecian AF Oe Seton

Cireuit. 7

In Reed v. The Yaka, DCED. 1960, 183 F. Supp. 69,

all of the cases cited by the Court of Appeals in the instant

case were rejected by the Judge who imposed liability in

rem. The faet that ultimate responsibility for payment of

the judgment may fall upon the employer whose liability

is exclusive was held to have been answered conclusively

by this Court in Ryen Stevedoring Co., Inc. v. Pan Atlantic _

S. S. Corp., 350 US. 124, 76 8. Ct. 232, 100 L. Ed. 133.

Furthermore, it was pointed out that if argument of the

respondent were adopted, the holding of Seas Shipping Co.

v. Sieracki, 328 U.S, 85, 66 S. Ct. 872, 90 L. Ed. 1099, would.

be vitiated.

>

183 F. Supp. at page 76.

The Court of Appeals for the First Cirenit, however,

adopted that argument and has thus vitiated Sieracki.

In Leotta v. The.SS Esparta, D. C. S. D. N. V., 1960, 188

F. Supp. 168, the precise issues involved in the case at bar

arose again. Faced with the obvious conflict between

Vitozi v. S. S. Platano, D. C. S. D. N. V., 1948, 1950 A. M. C. 1686

and Reed v. The Yaka, D. C. E. D. Pa. 1960, 183 F. Supp.

169, the trial judge ruled that the Reed decision was cor-

rect,basing his conclusion on Grillea and Ryan.

- The decision in the instant case recognizes the irrecon-

cilability of its position with Grillea, Reed and seat but

insists that they are wrong. ;

7 « 9 5

10 a

As authority for its position, the First Circuit relies

upon the decision of Noel. v. Isbrandtsen Company, 1961,

4 Cir., 287 F2d 783. It is submitted that Na. too, is di-

rectly in conflict with the opinion below. In Noel, the libel-

lant was not entitled to a seaworthy veasel; the vessel,

having been permanently withdrawn from navigation, did

not warrant its seaworthiness; and, there was a finding

that there was no negligence. The in rem action was dis-

missed, the Court saying: a

„We know of no precedent for requiring her to

respond asx an absolute insurer for personal injury

where there has been no violation of any warranty

of unseaworthiness and it is not established that any-

one connected with her has heen at Fault.

287 F.2d at page 787.

May it seriously be contended that the quoted language

is authority for holding that no in rem liability may be im-

posed when the unseaworthiness is conceded, and in fact,

was never contested! |

Until the decision in the case at bar, it was obvious that

Grillea was the law. Now, the law in confusion and the

conflict, it is respectfully submitted, can be resolved only

by this Court.

B. Tur Covet or AppraLs von THE Fest Cmevit Has De-

oba a Question or ApmimaLty axp Maritime Law ix

_Conriict WITH THE AUTHORITATIVE ne or Tus

6 ov RT.

a) In a long line of decisions this Court has held that

in rem liability may be imposed, even when the owner may

not be liable in personam.

11

For piracy, in the absenee of privity or knowledge on the

part of the owner, ships were beld subject to forfeiture.

The Palmyra, 25 U.S. (12 Wheat) 1, 6 I. Ed. 531.

The Malek Adhel, 43 U.S. (2 How.) 210, 11 L. Ed. 239.

A vessel is liable in rem for collision damage caused by

the negligence of a compiflsory pilot.

The China, 74 US. (7 Wall.) 53, 19 L. Ed. 67.

Sixty years ago admiralty lawyers recognized that a

vessel, demised under a charter, was liable in rem, for col-

lision damage. The only issue that came before this Court

was whether the owner or demisee bore ultimate responsi-

bility under the charter! party.

The Barnstable, 181 U.S. 464, 21 S. Ct. 684, 45 L.. Edd.

9541.

More recently, this Court awarded recovery to a libellant,

Also a longshoreman, against the zel although it had

been chartered under a demise, where the demisee was not

the stevedore-employer.

Crumady v. The Joachim Hendrik Fisser. 358 US.

423, 79 S. Ct. 445, 3 L. Ed. 2d 413.

Exceptions to the imposition of liability in rem exist

when the injured party has exonerated the vessel's- owner

in advance or when the lien is sought because of a wrongful

act of the sovereign for which it has not consented to be

sued. . a

* * ¢

Queen Of The 5 480 U.S. 49, 21 8. (t. 278, 45 J.

Ed. 419. —

The Western Maid, 257 U.S. 419. 42 S. Ct. 159, 66 L..

Ed. 299.

—

12

The rut Cireuit has applied the exceptions where they

are inapplicable because the instant case involved no ex-

oneration and no sovereign.

b) Until the decision of the court below it was axiomatic

that a shipowner could not contract away or delegate his

duty to furnish or maintain a seaworthy vessel to all those

entitled to such a warranty.

Mahnich v. Southern Steamship (Co., 321 U.S, 96, 6+

S. Ct. 455, 88 L. Ed. 561.

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct.

872, 90 L. Ed. 1099. 7

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct.

202, 98 L. Ed. 143.

Alaska .S. Co., Inc, v. Petterson, 347 U.S. 396, 74 8.

Ct. 601, 98 L. Ed. 798. 8

Rogers v. United States Lines, 347 US. 984, 74 S. Ct.

849, 98 I. Ed. 1120. — 8

Crumady v. The Joachim Hendrick Fisser. 358 U.S.

423, 79 S. (t. 445, 3 L. Ed. 2d 413. 5

United New York and New Jersey Sandy Hook Pilots

Ass'n. v. Halecki, 358 U. S. 613, 79 8. Ct. 517, 3 L. Ed.

2d 541. a A

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct.

926, 4 L. Ed. 2d 941.

—

The fact that the stevedore-employer, against whom suit

may not be brought. may ultimately have to indemnify the

r does not in any way affect the injured worker

right against the shipowner or the vewel.

Ryan Stevedoring (o., Inc. v. Pan Atlantic S. S. Corp..

350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133.

Crumady v. The Joachim, Hendrick Fisser. 358 US.

423, 79 S. Ct. 445, 3 I. Ed. 2. 413.

*

13 3

» What the respondent has done is to set up & hare boat

charter to contract for the sole responsibility for unsea-

worthiness and then set up the Workmens Accident Com-

pensation Act of Puerto Rico as u bar to recovery What

is invited by the decision below are contracts for situations

auch as exist here, for the sole purpose of destroying a

jongshoreman s in rem remedy. No more was the Puerto

Rican Statute, 11 L. P. R. A. 21, enacted to diminish the long-

shoreman’s rights than was the federal statute, 33 U.S.C.

Reed v. The Yaka, D.. k. D. Pa., 1960, 183 F. Supp.

69, 75-77.

If the decision of the United States Court of Appeals for

the First Cireuit is not reversed, the principles laid down

in all of the cases subsequent to Sieracki would become

empty words. 5

e) The Court of Appeals for the First Cireuit has vio-

lated the standards set by this Court in reviewing findings

of the District Court, sitting without a jury in admiraltv.

The findings of the District Court may not be set aside

unless clearly erroneous:

McAllister v. United States, 348 US. 19. 75 S. Ct. 6,

99 I. Ed. .

At the trial there was conflicting evidence. No doeu-

ments, contracts, charter-parties or correspondence was

offered by the respondents to corroborate the existence of

ademixe, The trial judge stated on the record that he did

not believe that the stevedore-emplayer was operating the

vessel (R. 35) and he formally so found. (R. 58) ?

—

14

Conceding arguendo that a demise charter may be estab

dished by parole, although aside from harbor craft there

ia no modern example of such practice in the shipping in-

dustry, this Court has stated:

: ‘Courts of justice are not inclined to regard the

contract as a demise of the ship if the end in view can

conveniently be secomplished without the transfer of

the vel to the charterer.’

Reed v. United States, 78 U.S. (1 Wall), 391, 20 l. Ed.

220. '

The action of the United States Court of Appeals for

the First Circuit was not a review at all. It was trial

4e nore, without benefit of demeanor evidence.

It is urged tat the findings of the District Court arc

not cnlymot clearly erroneous but that they are manifestly

correct.

For the foregoing reasons, it is reapeetfuily swbmitte|

that this Honorable Court issue a writ of certiorari to the

United States Court of Appeals for the First (ireuit in thix

cause and this (‘ourt should review and reverse the decision

of the Court of Appeals.

Maz Gunman

F. . Bex 9314

Nanturce, Puerto Bico

Counsel for Petitioner

15

RAPS

United States Court of Appeals

For the First (Ar euit

No. 3650.

RAMON Un PICHIBILA),

REMPORDENT, APPELLANT,

F.

LAUBEANO MAYSUNET GUZMAN,

LARELLANT, APPEALZE.

APPEAL FROM THE — STATES DEBTRICT COURT 2

FOR THE DEINTRICT OF PURRTO RICY

Before Wounevar, Chief Judge, and Mame

and Alen. (iecwit Judges.

n unn . 1 HH sdies

er were on brief.

. „„ whom L. F 6

„ brief, for appriler

OPINION OF THE COURT.

May 29, 1961. ~

16

The court ruled that the evidence showed no such charter.“

This ruling was wrong. A demise charter may be,

one was claimed to be, by parole. James v. Brophy, 1 Vr.

1895, 71 Fed™310, 312. We do not gather the court thought

otherwise. We believe the court was misled by test mony of

Bordas’ representative that the arrangement was not the

usual charter party (although he added that it ix a kind

of a charter ).“ The witness, a layman, was not qualified

to draw legal conclusions. Moreover, his reservations ap-

pear to have been that it- was neither a time charter, nor

a bare boat charter, rather than that there was no charter

at all. A demise, of course, is not a time charter, and it

need not be of a bare boat. U'nifed States v. Shea, 1894.

152 U.S. 178. |

The evidence showed that respondent, permanently re.

siding within the Dominican Republic, had had no con

nection with the operation of the Caribe for some five years,

except that he had appointed, or employed.“ the master.

That action would not mean a control of the vessel so a»

to prevent a demie. See United States v. Shea, supra;

Cirillea v. United States, 2 Cir., 1956, 229 F.2d 687, 689-90:

The Willie, 2 Cir., 1916, 231 Fed. 865. Bordas’ representa.

tive testified, witheut contrad ction, that the master wax

17

planation Why an agent should be making fixed monthly

payments to a principal, rather than the reverse. We hold

the evidence indisputably shows that Bordas was operating

the ship as a demisee. Reed v. United States, 1870, 78 U.S.

(11 Wall.) 501. 601 (‘* possession, command, and naviga-

tion).

In 2 v. Balboa Shipping (o., 1 Cir., 1947, 163 F. ad

286, we held that an owner who has surrendered all control

by demise was not liable in personam for unseaworthiness.

Possibly we erred in extending this rule indiser:minately

to cases where the unseaworthy condition preceded the de-

mise. See Cannella v. Lykes Bros. S.S. Co., 2 Cir., 1949,

174 F.2d 794, 795, cert. den.,.338 U.S. 859. But we see no

reason to reconsider when, as here, the defective condition

arose only after the owner had parted with all possession.

See Grillea v. United States, supra, at 689, 690. The judg-

ment in personam against respondent must be set aside.

Respondent, as claimant to the vessel, also asks us to

dismiss the libel in rem. Since Bordas’ obligations under

the Puerto Rico Workmen's Compensation Act represent

its exelusive liability to its employees, 11 L.P.R.A. ch. 1,

$21, an obligation obviously not here involved, and since

the owner of the vessel is not personally liable at all, re-

spondent contends that the vessel should not be independ-

entlpcharged. We agree.

It is generally accepted that the in rem action in admir-

alty and the maritime lien are correlative. ‘‘ Where one ex-

ints, the other can be taken, and not otherwise.’’ The Rock

Island Bridge, 1867, 73 U.S. (6 Wall.) 213, 215; see The

Resolute, 1897, 168 U.S. 437, 440; The Lottawanna, 1874,

88 U.S. (21 Wall.) 558, 581; 1 Benedict, Admiralty 18 (6 ed.

Knauth 1940): Gilmore & Black, Admiralty 510 (1957);

Price, Maritime Liens 12 (1940) ; Robinson, Admiralty 362

(1939). This does not solve our problem, because we could

hold that a Len had ar:sen from a claim against the ship

@ os

notwithstanding the absence of a claim against any dis-

tinct juridical person, but it does focus attention on the

necessity of an underlying claim. The concept of a ship

as an individual may have an aura of romance befitting the

lore of the sea, but to regard it as an entity having separate

responsibilities independent of the primary legal responsi-

bility of some human actor has little rational appeal. This is

not to say that the- ‘* personification of the vessel is not

a convenient shorthand method of expressing legal results.

See Price, Maritime Liens 16 (1940); Hebert, ‘‘The Origin

and Nature of Maritime Liens, 1930, 4 Tul. L. Rev. 381,

392. It is something else to use the character! zuation to

achieve them. AS

In a variety of situations courts have refused to charge

the ship when neither the owner nor the party in possession, _

nor the agents of either, were personally liable. In Queen

of the Pacific, 1901; 180 U.S. 49, it was argued that a

stipulation in u bill of lading requiring all claims against

a shipowner to be bronght within a certain time did not

prevent an in rem action against the vessel after that time.

The court rejected this, saying. The ‘clai im” is in either

case against the, company, though the suit may be against

its property. "> 180 U.S. at 53. (Ital. in orig.) In The

Ocednica, 2 Cir., 1909, 170 Fed. 893, 898, cert. den., 215

U.S. 599, it was alleged that W tug had negligently caused

the loss of her tow. The to contract exempted the tug

owner from negligence.” The Gourt refused to charge the

tug. That this was not simply a question of contractual

interpretation is made clear by Rhe Elizabeth . Miller.

D. C. W. D. N. V., 1932, 3 F.Supp. 171),172-73, where the tug

was operated by an allegedly exempted demisee. The

, Western Maid, 1922, 257 U.S. 419, involved several col

* * . > = * *

lisions in which vessels owned outright or pro hac vice by

— —

3 But see Bisso v. Inland Waterways Corp., 1955, 349 U.S. 85.

“4

19 ive

the United States were assumed to be at fault. Sovereign

immunity at that time prevented suits against the govern-

ment. The court refused to hold that a lien had attached

which was enforceable when the ship passed into private

hands. More recently, in Noel v. Isbrandtsen Co., 4 Cir., ©

1961, 287 F.2d 783, in rem liability was not established be-

cause of the failure to show any personal obligation owed

to the libellant to furnish a seaworthy ship.

There is nothing in the doctrine of unseaworthiness that

should lead to a different result. It is true that one speak»

of unseaworthiness ‘‘of the vessel’’ and of liability with-

out fault, but this cannot obscure the fact that liability

depends upon a legal obligation growing out of a relation-

ship between individuals: the injured party and the one

charged with preventing the injury.“ See United New York

and New Jersey Sandy Hook Pilot Association v. Halecki,

1959, 358 U.S. 613, 616; Seas Shipping Co. v. Sieracki,

1946, 328 U.S. 85, 95-96; id. at 104 (dissenting opinion) ;

Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 100,

103-04; The Osceola, 1903, 189 U.S. 158, 171, 175; cf. Grillea

v. United States, supra, at 690. A ship does not make a war-

ranty. Whether one speaks in terms of holding out, cf.

West v. United States, 1959, 361 U.S. 118, 122, or duty

owed, Halecki, supra, unseaworthiness liability requires

something mote than a mere defective condition of the

vessel. See Noel v. Isbrandtsen Co., supra.

In Smith v. The Mormacdale, 3 Cir., 1952, 198 F.2d 849,

cert. den., 345 U.S. 908, a longshoreman who was limited in

his rights against his employer by the Longshoremen’s and

Harbor Workers’ Compensation Act, 33 U. S.C. $§901-50,

* Liability without fault in analogous situgtions has not led courts

to describe the result as ~ he eee ee eee

parties involved. See, e. g., Exner v. Sherman Power Constr. Co.,

„ 1931, 54 F. ad 310, 512.14. See generally, Prosser, Torts

17-18 (2d ed. 1955).

20

was held unable to proceed against the vessel which was

owned by his employer, although the vessel’s unseaworthy

condition was alleged. Following the teaching of the cases

earlier discussed, we are not prepared to reach a different

conclusion simply because title to the vessel is in the hands

of another party who is also not personally liable. C,.

Pedersen v. Bulkiube, D.C.E.D.N.Y., 1959, 170 F.Supp. 462

466-67, affirmed, 274 F.2d 824, cert. den., 364 U.S. 814;

Vitozi v. Platano, D. C. S. D. N. V., 1948, 1950 A. M. C. 1686:

The Elizabeth M. Miller, D.C. W. D. N. V., 1932, 3 F. Supp.

171, 172-73-(dictum). But see Leotta v. The S. S. Esparta,

D. C. S. D. N. V., 1960, 188 F. Supp. 168, 169, infra; Reed v.

The Yaka, D. E. D. Pa., 1960, 183 F. Supp. 69, infra. Nor,

by. some process of inverse reasoning, does this lead us to

say that a demisor is personally liable for a condition of

unseaworthiness oreated be the demisee. It should be

enough that his ship is subject to a lien to secure whatever

obligation the demisee has personally incurred in h's opera-

tion of the ship. See The Barnstable, 1901, 181 U.S. 464.

It is true that in Grillea v. United States, 2 Cir., 1956,

232 F.2d 919 (2-1), the court reached the opposite result.

It did so without discussion, and with only the simple

statement, ‘‘we see no reason why a person's property

should never be liable unless he or someone else ix liable

‘in personam.’ 232 F.2d at 924. With all deference we

think so novel a principle needs more support than a

statement that the court sees no reason against it. Grillea

seems the more surprising in that Judge Hand, the writer

of the majority opinion, had observed not long before,

after discussing the ancient doctrine of deodand. Dis-

putes arise between human beings, not inanimate things:

... @ vessel... is, and can be, nothing but the measure

of [tlaimant’s} stake in the controversy. Burns Bros.

r. The Central R. R. of New Jersey, 2 Cir., 1953, 202 F.2d

910, 913.

21

' Grillea has resulted in some discussion of the effect of

an indemnity clause in the demise. Leotia v. The S.S.

Esparta, D.C. S. D. N. V., 1960, 188 F. Supp. 168. See also

Reed v. The Yaka, D. C. E.D. Pa., 1960, 183 F. Supp. 69.

We would agree with Yaka that the existence of an in-

demnity clause is beside the point. But we cannot agree

with Yaka that the fact that the demising owner is eventu-

ally going to get the boat back is determinative. This was

answered by The Western Maid, supra. Cf. Pedersen v.

Bulklube, supra.

We do not reach respondent’s other contentions, one of

which appears to have some merit.

Judgment will be entered vacating the judgment of the

District Court and remanding the action for entry 5 a

judgment of dismissal.