# Respondents Brief in Opposition — Guzman v. Pichirilo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0086%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition - **Published:** January 1, 1962 - **Citation:** 369 U.S. 698 ## Text Table of Contents. Opinion of the Court of Appeals Questions presented Statement of ease Argument A. The opinion below does foe conflict with opin- ions of other circuits B. The decision below does not conflict with ap- _ plicable decisions of this Court C. The Court of Appeals did not deviate from this Court’s accepted principles in holding that the Carib was demised to the stevedore-em- ployer Conclusion Table of Authorities Cited. Cas. Bennett v. The Mormacteal and Moore-McCormack Lines, Inc., 160 F. Supp. 840, aff' d per curiam 254 F. 2d 138 Burns Brothers v. The Central R. R. of New Jersey, 202 F. 2d 910 Cannella v. Lykes Bros. 8.8. Co., 174 F. 2d 794, . cert. denied 338 U.S. 859 * City of Norwich, The, 18 U.S. 468 Consumers Import Co. v. Kabushiki Kaisha Kawa sakis Zosenjo, 330 U.S. 249 Continental Grain Co. v. Barge FBL-565, 364 U.. 19 Crumady v. Joachim Hendria Fisser, 356 U. 423 Grilles v. United States, 183 F. 2d 919 McAllister d United Status, 368 UB. 19 Neel v. Isbrandteen Co., 387 F. 24 783 do o © @ 4,5 2 3 8 7 6,7 3,4,5 — oar ar FEC ÜN — — ii AUTHORITINS CITED Pedersen v. The Bulkiube, 170 F. Supp. 462, aff’d per curiam 274 F. 2d 824, cert. denied 364 U.S. 814 4, 5,6 Queen of the Pacific, 180 U.S. 49 : 7 Samuels v. Munson 8.8. Line, 63 F. 2d 861 4n. Seas Shipping Oo., Inc., v. Sieracki, 328 U.S. 88 7 Smith v. S.. Mormacdale, 198 F. 2d 849, cert. denied 345 U.S. 908 an. Western Maid, The, 257 U.S. 419 7 Vitosi v. Balboa Shipping Co., 168 F. 2d 286 In. Srarvrs. Workmen’s Accident Compensation Act of Puerto Rico, 11 L.P.B.A. c. 1, sec. 21 1, 3, 7 1 * Supreme Court of the United States. OD Tuan, 1960. No. 388. LAUREANO MAYSONET GUZMAN, Petitioner, 1. RAMON LUIS PICHIRILO, Respondent. BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION FOR CERTIORARL 2 Opinion ef the Court of Appeals The opinion of the Court of Appeals, which is printed as an appendix to the petition (Pet. 15-21), has now been reported at 290 F. 2d 812, and at 1961 A.M.C. 1588. Petitioner also asks whether the longshoreman’s right to a seaworthy vessel is extinguished by his employer be- coming a demise charterer.’’ Respondent would rephrase this question thus: ‘‘May the longshoreman’s recovery ‘from his employer for injury caused by unseaworthiness be limited by a validly applicable Workmen’s Compensa- tion Act?’’ Statement of Case. Respondent adds to petitioner’s statement only that the shackle which broke was a ‘‘new’’ shackle (R. 40). There is no suggestion that it had -been installed prior to the commencement of the charter, five years earlier. Peti- tioner does not attack the Court of Appeals’ statement that the ~nseaworthy shackle had been furnished by the charterer ‘‘recently’’ (290 F. 2d 812, 813). We emphasize that petitioner’s coming under the care of the State Insurance Fund of Puerto Rico, and his final award of compensation thereunder, were not only alleged as an affirmative defense (Pet. 5, R. 10), but were alleged in the libel (R. 4) and admitted in petitioner’s own testi- mony (R. 14). . Arrument. A. Tas Ormws Ba.ow poss Nor Cozriacr wire Oruioxs or Oran Cusco. The First Cireuit’s nien below fully accords with those of other cireuits, as an examination of the relevant cases will demonstrate. (1) Burns’ Brothers v. The Centra] B.R. of-Hew Jersey, 202 F. 3d % (2d Cir. 1953), expressed an secepted prin- ciple of maritime las A vessel is liable mm rem for a col- 3 lision caused by the negligent act of the demisecharterer even though the general owner out of ion is not liable in personam; but, as the opinion shows (202 F. 2d at 911), the demisee remained so liable. The instant case is quite different. Here the demisee (whose fault would otherwise cast the ship in rem) had been statutorily ex- empted from any in personam liability to petitioner be- yond that created by the Puerto Rican Compensation Act. (2) Cannella v. Lykes Bros. 8.8. Co., 174 F. 2d 794 (2d Cir.), cert. denied 338 U.S. 859 (1949), is equally in ac- cord with the opinion below. In Cannella the longshore- (3) Despite what petitioner says in his brief, Noel v. Isbrandtesen Co., 287 F. 2d 783 (4th Cir. 1961), does not the opinion below. The decision in Noel 4 flict between the circuits. We urge that this view of Grillea ignores both the facts of that case and subsequent inter- pretations which the Second Circuit itself has put on it. In Grillea the Court emphasized the reliance of its opinion on the charterer’s written agreement to indemnify the gen- eral owner against liens arising out of the operation of the vessel. There is no specific indemnity agreement in the instant case. 2 In any event, whatever force Grillea might have had when it was written has since evaporated. It is no longer regarded as law even in the Second Circuit. Petitioner errs when he argues (Pet. 10) that until the present deci- sion ‘‘it was obvious that Grillea was the law.“ In Bennett v. The Mormacteal and Moore-McCormack Lines, Inc., 160 F. Supp. 840 (E. D. N. T. 1957), aff’d per curiam 254 F. 2d 138 (2d Cir. 1958), the Court. denying liability of _ vessel i rem to a longshoreman where the owner-steve- dore in possession and control was protected from further liability by the Longshoremen’s and Harbor Workers’ Compensation Act, noted the great stress“ which Judge Hand had placed on the written contract of indemnity in fixing the liability on the owner of the vessel for any liens incurred during its charter.“ The decision of the District Most recently, in Pedersen v. The Bulklube, 170 F. Supp. 462 (E.D. N.Y. 1959), af d per curiam 274 F. ad 824 (2d Cir.), cert. denied 364 US. 814 (1960), a District Court ; Neither Judge Hand nor Judge Abruzzo [in Ben- nett v. Mormacteal, supra] explained the — of a contract of indemnity between a ‘guilty’ char terer and an ‘innocent’ shipowner in establishing lia. bility im rem in the vessel where the charterer and the owner are not othérwise personally liable. . Although at a loss to, understand the theoretical wis nificance of [the indemnity agreement], I conclude, in ‘the light of the decision in Bennett, that Grillea does not sustain the position which libellant advances. In any event, it would be strange logic to hold that a vessel, owned by one who might be otherwise liable in tort but who is within the protection of the Com- pensation Act, cannot be reached in a proceeding in rem, and at the same time to hold, as libellant urges here, that a vessel owned by a wholly innocent third party can be held liable where, as here, there is no contract of indemnity, and the negligence causing the injury is solely attributable to the employer protected by the Compensation Act.“ 170 F. Supp. at 466-467. This opinion, too, was affirmed per curiam by the Court of Appeals, ‘‘on the opinion of’’ the trial Court. The affirmations of Bennett v. The Mormacteal and Pedersen v. The Bulklube clearly indicate that, if Grillea were to arise today, the Second Circuit would not follow that opinion’s incorrect reasoning. | B. Tun Domo Batow poms Nor Conriaor unn Arru- can Den or Tam Cover. We agree that under suitable circumstances in rem lia- bility may be imposed en a vessel even though the owner is not liable im personem. It will serve no purpose \ now to discuss the various contexts in which that situation results. Absent the owner's in personam liability, in rem liability normally results when the owner has entrusted the control of the vessel to another voluntarily, as in the case of a demise charter, or has entrusted the navigation to another even involuntarily, as in the case of a compul- sory pilot.“ But, as already discussed, Pedersen v. The Bulkiube, supra, pp. 46, in rem liability may not flow from the act or failure of a demise charterer who has, as here, a personal statutory defense. Se The decision of the Court of Appeals in the instant case does not conflict with any cited by petitioner at page 11 of the petiti one of those cases which factually approaches the instant case in the slightest degree is Crumady v. Joachim Hendrik Fisser, 358 U.S. 423 (1959); but there the charter was a time charter and tPetitioner imeorrectly asserts (Pet. 11) that the vessel had been chartered under a demise. The transcript of the record of that case in this Court (Nos. 61 and 62, October Term, 1958) through agents, servants or empleyess (Art. 11 of the libel; K 9). The answer admitted ownership, and in article 11 et te anewer admitted thet respondent operated the veesel (with the a additional alie-xtion excepting those parte of the vessel which hed been turned over to the stevedere andthe longuhore- men) (BR 12). The erems-petition for writ of certiorari in No. nnr terer (pp. 7 are inapplicable, because the instant case involved no ex- oneration .. (Pet. 12). But there indeed, ex- oneration here: the Workmen’s Accident pensation Act of Puerto Rico, 11 L.P.R.A. o. 1, sec. 21, provides that, when the employer has insured his workmen under the Act, compensation is the exclusive remedy against the em. loyer. Queen of the Pacific, 180 U.S. 49 (1901), and Tie Western Maid, 257 U.S. 419 (1922), therefore directly support the decision below. Petitioner also cites eight decisions of this Court hold- ing that a shipowner cannot contract away or delegate his duty to furnish or maintain a seaworthy vessel (Pet. 12). None of the cited cases treats the relative responsibilities of a general owner and an owner pro hac vice. None of them holds that the general owner of a demised vessel continues to bear the obligation of ensuring seaworthiness of the vessel after the demise period has begun. Indeed, none of those cases except Crumady deals with a charter at all; and in Crumady the charter arrangement was a time charter, not a demise (as pointed out, supra, p. 6 and footnote). The decision below in no way departs from the prin- ciples laid down in Seas Shipping Co., Inc., v. Sieracki, 328 U.S. 85 (1946). It holds merely that the general owner is not responsible for orthiness arising after the demise, and that, where demisee has a personal statutory exemption from liability, the vessel may nat be seized and condemned in rem to satisfy a claim based on such unseaworthiness. 5 0 To subject M/V Caan to seizure and condemnation in rem in this case would be to apply the property either to a liability for which the general owner bears no responsi- bility or to a liability from which the demise charterer, by valid enactment, has been exempted. See Continental Gramm Co. v. Barge Less, 364 US. 1, 23-24-1900); — U.S. 269, 254 (1948); The City of Norwich, 503 , : The Court of Appeals here reversed the District Judge on a ruling of law. The District Court had said (R. 57): “*The evidence is so meagre in this respect that I can find 10 lawful basis for holding that the vessel was under a demise charter party to Bordas & Company.“ In other words, the District ruled that the evidence did not suffice to support a finding of a demise. The ruling was thus equivalent to a verdict in a jury case. We urge that, becanse the District Court was wrong asa mat- ter of law, the Court of Appeals was free to correct the unquestioned evidence, a remand to the District Court with instructions to make the same finding would be a use- less, time-wasting formality. : 5 It is respeetfully submitted that the petition for writ of certiorari should be denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0086%3A4. Public record. Not legal advice.