Petition for Writ of Certiorari — Guzman v. Pichirilo

/ Once - Sup: eme Court. U.S.

FILED

AUG 25 1961

JAMES R BRUAVNING Clerk

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5 Oetober Term, 1961

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LAUREANO MAYSONET GUZMAN,

PETITIONER,

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V.

RAMON RUIZ PICHIRILO.

RESPONDENT.~

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PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

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Max GoL_pMaN

P. O. Box 9314

Santurce, Puerto Rico

Counsel for Petitioner

Harvey B. NAchMAxN

Sraxlxx L. Fevpsters

. Of Counsel.

Blanchard Printing Company. Boston. Mass — Law Printers

85 INDEX

V Page

Opinions Dh 1

%%% AAA!» ͥ . FT 8 2

Questions Presented ........... 5 . 2

.. CEPI EOI ] 3

Statement of The Case. 4

Reasons Relied On For Granting The Writ:

A. The Court of Appeals for the First Cireuit Has

Decided a Federal Question Directly In Conflict

With Decisions of Other Courts of Appeals and

Other Federal District Courts. ............... 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

of This Court. ........-..-0-- sees sree erence ee 10

(%% ⁵y saa CHS 8 0 6 eked ee 2 14

Appendix — Opinion of the Court of Appeals 15

Cases CITED

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

Ct; ORE GO La, TR ꝓZTJꝓAV»SR hi eis ee eh eee 12

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

Gee babs ͤ . ͤ as eees Bes 11

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

U ͤͥhõBßß hy ramet Sewer ET . Tey ETE SE 7, 8

Cannella v. Lykes Bros. S. S. Co., 174 F.2d 794, certi-

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

BOG a As is as ͥ »» 7, 3"

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

Crumady v. The Joachim Hendrik Fisser. 358 U.S. 423,

79 8. Ct. 445, 3 L. Ed. 2d 412232. 11, 12

Grilleag, United States, 232 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, 748. Ct. 6,

TT. ̃ ² T. ¾ .. 13

ii Index

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Page

Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 8.

Ct. 455, 88 L. Ed. 561 ..... JöÜ;Ü 8 12

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

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 8. Ct.

06.41. ME SAIN — 8 12

Noel v. Isbrandisen Company, 287 F.2d 783 ........ 7. 10

The Palmyra, 25 U.S. (12 Wheat.) 1. 6 I. Ed. 531. 11

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 8. C1.

/ rie RR. IR ene. 12

Queen of the Pacific, 180 U.S. 49, 21 8. Ct. 278, 45 L.

d A 25; ͤ ͤ is baaaeins 11

Reed v. United States, 78 U.S. (1 Wall.) 591, 20 I. Ed.

TE vis ees pos eeeeeeasensedercecceeenses 14

Reed v. The Yaka, 183 F. Supp. G90. 9, 13

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

849, 96 I. Ed. 1120 ......... JJ ͤ sowie. 12

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

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

Seas Shipping (70. v. Sierncki, 328 U.S. G. 66 S. Ct.

% ̃ V I is o hss 9. 12

United New York and New Jersey Sandy Hook Pilots

Ass'n, v. Halecki, 358 U.S. 613, 79 8. Ct. 517 0 8.

G ( AA ² ²⅛¾wꝛÿq˙¹ r. pedsaces 12

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

Vitozi v. S. &. Platane, 1956 A. M. C. 1686 ............ 8. 9

The Western Maid, 257 US. 419, 42 8. (t. 159, 66 I.

I i T isk seca dviveess K. 11

Sra rum

Constitution, Article 3, See. 22 jy

Longshoremen’s and Harbor Worker's Compensation

Act, Title 33 U.S.C., § 905 ...... 3 7. 13

Puerto Rico. Workmens’ Accident Compensation Act,

Tithe B8 GaP OA. Bie TE ions eevee ease 4, 13

Supreme Court of the Ruited States

October Term, 1961

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No.

—S—

LAUREANO MAYSONET GUZMAN,

PETITION ER,

.

et.

RAMON RUIZ PICHIRILO,

REAPON DENT.

re

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PETITION FOR WRIT OF CERTIORARI TO THE .

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To The Honorable The Chief Justice and The Associate

Justices of The Supreme Court of The United States.

The petitioner, by his counsel, Max Goldman, respectfully

petitions this Honorable Court to issue a writ of certiorari

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

peals for the First Cireuit which reversed the decree in

favor of petitioner and dismissed petitioner's libel filed in

the United States District Court fer the District of Puerto

Rico, and in suppert of his 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

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

United States District Court for the District of Puerto Rico

was not reported and appears in the certified record at

pages 36-56.

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 Judz-

ment of dismissal i dated May 29, 1961.

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Jurisdiction

The jurisdiction of this Honorable Court to review by

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

Title 28, Sections 1254(1) and 2101(c) and Supreme Court

Rules, Rule 19, Subsection 1(b).

Questions Presented

3. The questions presented for review are :

Al. 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 ungen

worthy condition is created while the demise charterer ix

in poaxeusion and control!

A2 Is vessel in the possession and control of a demise

char terer liable in rem for injuries to a longshoreman

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

worthy condition is created while the demise charterer ix

in pousession aud control, and if the demise charterer ix

also the sievedere-employer insured under a system of

workmen's compensation {

These questions comprise other issues eg.: whether u

veel may be liable in rem for unteaworthiness if there is

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

charterer ; whether the longshoreman’s right to a seaworthy

vessel is extinguished by his employer becoming the demise

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

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!

Nebessarily contained in this question are the subsidiary

questions of whether an appeal in admiralty is a trial de

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

verse the District Court's findings if not clearly 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 publie Minis-

tere 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 same State claiming Lands under G

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

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= * zens thereof, and foreign States, Citizens or Sub-

jeets.

The statute involved is:

Laws of Puerto Rico Annotated, Title 11, Section

21:

„When an employer insures his workmen or em-

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 couspensation 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

The petitioner, a longshoreman, was injured on board

the M/V Caan, of Dominican: registry, when the shackle

on the boom broke causing it to fail and strike him on the

head. He sustained severe and permanent injuries. Suit

was commenced in the United States Distriet Court for the

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

December 5, 1958.

Juriadiction was based on the admiralty and maritime

juriadietion of the United States and both ia rem and in

remedies were sought against the vessel and the

owner. The vessel was seized, pursuant to lawful proces«

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

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

In the answer, the respondents avérred that the vessel

had been · charteryd to Bordas & Co., of San Juan, Puerto

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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 acvident occurred.

Introduced into evidence at the trial was a deposition of

s the master, a Dominican, who characterized himself as an

employee of the respondent and referred 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 : .

„. win you please state your connection with

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

ness relation of ours for many years. We have been

managing and operating the ‘‘Carib’’ for around five

years. He lives in the Dominican Republie. (R. 51).

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

requested time to file a memorandum based on the defense

that Ramon Ruiz Pichirilo was not liable because he had

no control of the vessel. Thereupon the following colloquy

took place:

„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 who

was paying 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

been e 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.

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

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

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

owner was in possession and control of MVV Cant.

(R. 58). |

the

The United States (‘ourt of Appeals did not

the fact that the vessel was unseaworthy. The reve

was predicated upon this Court’s interpretation that the

evidence showed a demise charter by parole and could

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of Puerto Bico.

The Court of Appeals then held that a vessel could not

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

if the vessel were unseaworthy and it ordered the dismissal

of the libel.

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

frankly admitted that its holding was directly in conffict

with decisions of other United States Courts of Appeals

and other United States District Courts.

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Argument

A. Tun Court or APPEALs FOR THE Fimst Cucutr Has Dr-

an a Fepenat Question Dinectiy 1m ConrLict WITH

Drcmions or Ornen Covers or Arras anp OTHER

Feperat Distaict Courts.

The decision of which review is sought is irreconcilable

with three decisions of the United States Court of Appéals

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.

Cannella v. Lykes Bros. 8.8. Co., 1949, 174 F2 794,

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

L. Ed. 526.

Despite the reliance upon 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. 3

Chronologically, the first case involving some of the

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

Balboa Shipping (o., 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 ih the Southern District

of New York. That case was dismimed upon the ground

that the demisee was the stevedore-employer whose liability

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

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