Petition for Writ of Certiorari — Gutierrez v. Waterman Steamship Corp.

Supreme Court brief1963

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Supreme Court of the United States

OQeroper Tenm, 1962

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| Noy ) cy

FEDERICO MARIN GUTIERREZ.

PETITIONER, ‘

a. a

“>

WATERMAN STEAMSHIP €ORP..

RESPONDENT.

Ch Ececeteeineniptees

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

Harvey B. NacuMan

‘ P.O. Box 2407

3 San Jiian, Puerto Rieo

; Counsel for Petiteoner

Harvey B. Nacuman

STANLEY [LL. FELDSTEIN

‘Of Counsel, —

Blanchard Printing Company. Boston, Mass. — Law Printers

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Opinions. Below -. . . é. A BEE iy Eee rary cia a ea 2

Jurisdiction, ..,:... Say Ais Ms Ripe eee WO: vas cenevcae ss 2

Questions Profented NS SA tie ty rat gg ee ee 2

Statutes Involved ...... PPG ea Tae Abe rR heey eA ee

Sistoment of the Vase: er ee ee ee ee r

Vessel Is Not Mntitied to the Same Protection as

- a Longshoreman Injured Aboard the Vessel, the

Court of Ayfpeals for the First Cirenit Has*De-

cided an Important Question of Federal Admir-

alty and Maritime Law That is Trreconeilable

With a Statate-of Congress, Authoritative De-

cisions of This Court and Decisions of at Least

Five Other Courts of Appeals .................

eg oo eer ery a eee

” AL Negligence 2... ee ree :

Bo In Deetding "Phat the Petitioner’. Claim Was-

Barred hy Laches, the Court of Appeals for the

First Cireuit Has Decided a Question of Federal

Maritime Law Directly in Conthet with the Au-

thoritative Decisions of This Court, and the De-

cisions of Other Courts :of Appeals AO Ne ee

(. The Court of Appeals for the First Cirenit Has

Violaged the Standard Set by Tis Court in Re-

viewing Findings of -he District Court Sitting

Without a Jury in Admiralty .........0..... RIE

Conclusion ~..........; Snr og Mel oe! Bread ae ocd as

Appendix — Opinion of The Court of AppeEI: | nok c,:.

Reasons Reled on For Granting The Writ: -

If Deciding That a.Longshoreman Injured on the

Pier During the Discharge of Cargo From oa

2. 7

1 Pnidex

? “

: ('yskex CITED

Amador ve AOS J. Ludwig Mowinekels . deri, 2 Cir.

1955, 224 F’. zd eee certiorari dy nied, 300 U.S. 901,

1. E79, 100 1 BAT oe a

American Eavport bake: 3 gh ov. Revel; 4 Cir, 15 266

“ye E> Geerneae errant ieee Were oe ayer

Beard vy. Ellerman Lines, Ltd. 3 © ar. 1951, VSO FE, 2d 201

The Circassion, 1 Ben. 209, Fed. “Cas. No. 2,722 .*., <2.

~ Claussen v. Mene Grande Oil Co,, 3.Cir. 1960, 275. F. 2d

bs 108

el ime Se oe ee eae ee ee ee ee ee Ee ee, ee ee ee Re ROR See

Cloutian v. Tumison, (Cir, Court, D. Mass. 1883) 9

Pad: Das! 106s: are ated Ss, ihe eRe ae,

Curtiss vy. Garcia y Cia., 8 Cir, 1997, 241 FL 2d 30... ..

Di Salva vy. Cunard S.S. Co., DCAS.DINLY. 1959, 177 F.

MND. Mie «5534505 cn 02s BG TID sah tae A Mosport ng a cong

Diron vy. The Cyrus (D. Pa. 1789) 7) Fed, Cass 70, Case

Na. Se. 3 ene WE de ara eae Rie ee See

Fisher. United States Lines C ompany, DA B.D. Pa.

1961, 198 F. Supp. se ) pe Ee ele SRE RES OES

Gardner v. Panama R. Co, 1, (1951) 342 U.S. 29, 12 3. Ct.

A OG Le Se cc sph ee ee ee

Gilbert Knapp (1889) 37 .Fed. 209 .\..........-.6--

Gindrille v. American-Hawatian Steamship Company,

- Cir, 1955,.224 F. 2d 746 ....... pL Poe EK See

: Guzman ve Pichitile (1962) U.S. F S.Ct,

i L. ‘Eid.-2d ie. BOS, October Term, 1961,

decided May 21, 1963 h. .. 6. ee eee :

Haqaus v. ENerman && Puck nall Steamshiy Co., De.

E.D. Pa. 1961, 196 F. Supp. 593 ............ 15, 16,

Hagans v. Farrell Lines, Ine, 3 Cir, W906, 257 KF. 2d 477

The Hudson (W.D. Pa. 1881) 6 Fed. 880.02... Aes

mL rial Oil, Limited vo Drttk, 6 Cir, 1996, 254 KF. 2d 4

Neut vy. Shell Ou Company, 9 Cir, 1961, 286 F. 2d 746

: p

Tridex we

Page

Kermarec. v. Compagute Cre neran Transatlantique

(1959) 358 ULS. 625, 798. Ct. 406, FL. begs 24 550.... 17

Le Gate v. The Panamolgqa, 2 Cir. 1955, 221 F.2d 689 0. 19

— Litwinewier v. Weyerhae user S.S. Co., DUCLE.D. Pa.

SO, ne I Rs xe Vin ee GN bc ch eens 15

MeA wiser €. Magnolia Petroleum Co. (VW9O8) 357 U.S.

221, 78 S. Ct. 1201,.2 L. Ed. 2d 1272 ........... ee

Me Allister v. United States (1954) 348 U.S: 19, 75.8.

Pa A es ees aie 21, 23

Marceau v. Great Lake’ Transit Corporation, 2 Cir.

045. 146 FL 2d 416 20 18

6 € 6:4 3. 2 PO @ BO 8e* 20) D2 -346 0.6954 O44 €

Mitchell v. Trawler Racer, Inc., 1 Cir, 1959, 265 F. 2d ie

~426, reversed (1960) 362 U.S. 539, 80 S. Ct. 926, \

OO Pa Oe i i a eetes 20

O'Donnell vy. Great Lakes Dredge Co, (1943) SIS ULS.

36, 63S. Ct. 488, 87 L. Ed. 596 20... ees POORR A ©

Partenweederei MS Belaran vy. Weigel, 9 Ci ir, 1962, 299.

DY ger | Repo AE ae Ree Natit e at Sa eS 14

Pope & Talbot, Ine. v. Cordray, 9 Cir, Wo8, 258 FB. 2d

14. OG. Oe SPREE ree E hem 12, 14, 15.

Reddick \ v. ‘i {Mister Lighterage Line, 2 Cir, 1958, 2508

fe eee gee AUC Ree Re NE 8 eee ee ee 16

Rich vo EVlerinan & Bucknall SS. Co., 2 Cir. 1960, 278

Re hahaa oale Mia Nn race Paar eter ea E 16

Rohillard Na AGE: Burbank & Co., Ltd. D.C US.DINLY.

BGO, BOG F , OG 198 a iiik ek cea vs OR ree 15, 16

Ryan Stevedoring Co., Ine. v. Pan oy Steamship

Corp, (1956) 350 U.S, 124, 76S. Ct. 232)400 L.Ed.

Sy Aap RA ue rl pa ae en Re eH ess EMDR Dag I ig eer gre eae ar 15

Seas Shipping Co. v. Sieracki (1946) 328 U. » 66 °

S.Ct. 872, 90 L. Ed. 1099 2.00. 0.. ee ee er: 11, 12

Strika ve Netherlands Ministry of Traflic, 2 Gir. 1950,

185 BF. 2d 595, certiorari denied (1951) 341 U.S. 904,

718 IG 6 1 Ba, TS... £2, 13, 4,15

. ip

iv Index . ( nn age

Swanson vo Marra Brothers, Ine, (1946) S28 US. 1, *

66S. Cr 869, 90 L. Bd. 1045 20002... Reser: Me

Vale rio v. American President Lines= DACUSLDINY.

1952, 112 F. Supp. 802 ...... Oe tn to TPM 1, 16

Vega v. The Malula. 5 Cir. 1961, 291 F. 2d 410 .:..... HY

. :

: ‘STATUTES

Cer eeuel > OCie hn ok vaca ci basceenees. 3

Extension of Admiralty Jurisdiction Act, 46 US.CLA.

Tae SOE AE Oe Uae cds GOO i vac cieh duecevesess is

Puerto Rico Wee lnens’ Accident Compensation Act,

eC a) MM Nt eaten ade e Seta

MiscELLAN#OUS

Jacobsen, Laws of the Sea'(IS19) ................ ae

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in the

Supreme Gourt of the Rated State

hk PoOBEL ty Toe.

ae No.

RE DERICO MARIN GUTIERREZ,

PETITIONER,

WATERMAN STEAMSHIP CORP.

RESPONDENT. Pt

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

To tue Hoxnonvpiee., Toe Cuter Jistrice anp THe Associatt

Jesrices or-THue Surrewe Covrr or Fue Unxirvep Srares.

The petitioner, by his counsel, Harvey B. NacHMAN, be.

spectfully petitions this Honorable Court to issue a writlot

certiorari to review the judgment of the United States

Court of Appeals for the First Circuit, which reversed the

_decree in favor of petjtioner and remanded the case to the

Distrie? Court for the District of Puerto Rice with diree-

tious to dismiss the libel and in support of bis petition

does show ; | 2

’

1. The opinion of the United States Court of Appeals

for the First Cireuit has not been reported as of this date

and is appended hereto at pages 24-29, 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 12 through 22.

2. The judgment of the United States Court of Appeals

for the First Cireuit vacating the judgment of the District

Court of Puerto Rico and remanding with directions to

enter a judgment/of dismissal is dated April 11, 1962.

on 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 le(b). ¥

Questions Presented

3. The questions presented for review are: *

A. Isa shipowner liable for injuries suffered by a 'shore-

Rased longshoreman, who as participating in the unload-

ing operations of the ship at the time of injury?

wh |

- This question comprises the subsidiary questions of

~ .(1) whether longshoremen engaged in a ship’s service are -

entitled to the doctrine of unseaworthiness while working on

shore as they are while working aboard; arid, (2) whither

liability.of the shipowner, extends to injuries occurring on |

shore proximately caused by unseaworthy cargo aboard or

by its negligent discharge. -

“e-

B. Does the shipewner’s ability for negligence term-

Subsidiary issues comprised in this questidu include the

nate at the edge of the pier?

foreseeability of injury to one not aboard the vessel; the

responsibility of the shipowner for situations created

‘ashore even though the area where the injury oceurs is not

within his power and control; and the scope and the extent

of the shipowner’s continuing duty to pfdyide a safe place

‘ar !

to work.

C. May laches be deereed as a complete bar to recovery,

as a matter of law, if the trial court has found as a matter

of fact that the respondent was not prejudiced by the

delay? |

D. Does the Court of Appeals have the power to-reveyse:

findings of fact based in whole or in part upon the eredi-

bility of the 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 novo and whether a court of appeals has the right to

reverse the district court’s findings if not clearly erroneous

and if supported by ‘the evidence.

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 Constitu-

tion, the Laws of the United States, and Treaties

made, or which shall be made, under their Au-

~ thority : — to all Cases affecting Ambassadors,

’

other publie Ministers and Consils:— to all Case-

of admiralty and maritime Jurisdiction; — to

— Controversies to which the United States shall be

a Party; —- to Controversies between two or more

States: — between a State and Citizens of another

State: — between Citizens of different States ;—-

between Citizens of the same State claiming

Lands under Grants of different States, and be-

tween a State, or the Citizens thereof, and foreign

as States, Citizens or Subjeets.° 0 | af *

The statutes involved are:

Publie Law 695 of June 19, 1948 (©) 506, 62 Stat. 496;

$6 UWS. Code, Section 740: 7 ng

“The admiralty and maritime jurtsdiction of

- the United States shall extend to and inelude all

eases of damage or injury to person or property,

waused by a vessel on navigable water, notwith-

standing that such damage or injury be done or

consummated on land. ;

In any such case suit may be brought in rem or

| in personam according to the principles of law

and the rules of practice obtaining in cases where

tit, i injury or damage has been done and consum-

mated on navigable water: Provided, That as to’

i uy suit against the United States for damage or

jury done or consaimmated on land by a vessel

* dn navigable waters, the Public Vessels Act or

Suits in Admiralty Act, as appropriate, shall con-

s itute the exclusive remedy for all causes of,

; action arising after June J 19, 1948, and for all

CAUSeS of action where suit has not been hitherto

filed under the Federal Tort Claims Act: Provided

further, That me suit) shall be filed against the

United States until there shall have expired a

pervkl of six nronth= after the claim has been pres

sented in writing te the Federal ageney owning

or operating the vessel eausing the injury or

damage." _ a os \

Laws of Puerto Rieo Annotated, Tithe I, Séetion 32:

e'' —n cases where the injury, the oceypational

disease, or the death, entitliby the wWérkmian-or

. 1 as . q - ‘

eniplovee, or his beneficiaries,\to compensation in

accordance with this chapeer\ has been caused

jrd parties lable

th, the injured

under circumstances making tl

fer such ‘injury, disease or de?

Workman or employee or his beketic iaries may

claim and recover Roi ze from the third party

liable for said injury, disease, or dyath, within

: one vear following the date Shen bevomes final

ihe decision of the case by? the Manager of the

State Insurance Fund, who may subrogate him-

self in the rights of the workman or employee or

his“ beaeficiaries to institute the same action in

the following manner: ;

“When an injured workman or employee, or his

beneficiaries in case of death, may be entitled to

instNute an action for damages against a third

person in eases where the State Insuranee Fund,”

in accordance with the te rms of this gripe is

obliged to compensate in any manner or to fur-

nish treatment, the Manager of the State Insur-

ance Fund shail subrogate himself in the rights of

the workman or.employee or of his, heneticiaries,—

and may institute proceedings against sue ia third

person in the name of the injured workman or

es 3

4 >

‘

™ ,'

fad

«, Written notice on them of such proceedings within ~~

: cathe) Hj

- : $ . ne

gruplovee, cor of his he neficharies, Witinh the nifety

($0) davs following the date on which the decision

of the ease becomes final and executory, and any

sum-Which as a resulfof the action, or by virtue

6 a judicial or extrajudicial compromise, tay be.

. obtained inv@xeess of thetexpenses ineurrcd in the

ease, shall be delivered to the guna Res kan or

employee or to, his beneficiaries entitied thereto.

The workman or employee or his l@neticiaries

shall be parties In eve ry pro@eding instituted by

the Manner under re le pray isians of tris section,

~angl it shall he the duty of the -Manager to serve

five (9) days after the action is istituted.

—iTf the Manager should fail to institute action.

against the third party hable, as set forth in the

preceding paragraph, the workman oF employee,

‘or his beneticiaries, shall be fully at® liberty to

iustitute suc h agtion in their behalf, without be-

ing obliged to reimburse the State Insurance Fund

for the expenses incurred in the case..

Neither the’ injured workman or employee, nor

his beneficiaries, may institute any aetion or com-

promise any cause of action they may have agaitst :

the third party lable for the damages, until after

Hie lapse of ninety days from the date @ which

the decisien—of the case by the Manager of the

State Insurance Fund became final and executory.,

‘No compromise between the jujured workman

or employee, or his béneticiaries iy case of death,

and the ‘third’ party liable, made hin the ninety

(90) days followmeg thedate on wich the decision

of the case becomes final and execeutory, or after

the lapse of said term if the Manager has filed

hi®ompiaint t, shall he valid or e ‘Hfeetive | in law utr

less the expenses inenrred by the State Tisurance

Mund inthe case are firs} paid: and no judgment

shall be entered in suits fof this nature, nor snall,

anv Compromise whatsoever as to the rights of

the parties to said S suit» shall be approved, with-

out making. express reserve of thi right of the

State Tnsurance Fund to reiinbursement of all ex-

penses inenrred; Provided, That the secretagy of

the court part taking coguizanee cof any elas of

‘the nature described above shall ‘nota v the Man-

aver of the State Insurance Fund any order en-

- tered by the court whic ‘y affeets the rights of the

. parties to the case, as wellas the final disposition

of said case.

<The Manager of the State Insurance Fund

- may, with the approval of the Secretary of Labor

of Puerto Rico, compromise as to his rights:

against a third party liable for “the damages;

_ Tt being understood, howerer, That, no extra-

judicial compromise shall impair the rights of the

workman or wuiplovee,or of his beneficiaries,

without their express consent and approval.

‘Any sum obtained by the Manager of the State

[nsurance Fund through the means provided ‘in

this seetion’shall he covered into the State Insur-

ance Fund for the benefit of the particular group

_—into which was Classified the occupation or the

industry i which the imjured or deafleworknian or_

: employee w as employed. oo Amended June 15, vs IO,

No. 76, p. 258, 6 2,Afh. June 15, 1955."

Statement of the Case “

On October 21, 1956, Federico Sarin Gutierrez, a longs

shoreman employed by an independent stevedoring ¢on-

tractor, was injured when he fell on the apron of the pier

in Ponce, Puerto Rico, during the course of the unloading

of the SS Hastines, a vessel owned and .operated by the

respondent. ° -

The petitioue:’s duties were performed entirely on shore

and he never went aboard .the vessel. Prior to his injury,

the vessel had discharged torn bags of beans, whose con-

tents were spilled on the apron of the pier. Petitioner, en-

gaged in the discharging operation, slipped on some of the

spillage, fell and injured his back. The spillage had been

observed while the bags were in midair on gente attached

*to the ship’s discharging equipment, (R. 23, 76, 77, 78, 192;-

Exhibit 10, 156 through 164),

Suit was filed in the United States District ( Sourt for the

Southern District of New York on January 9, 1959, Under

the analogous statute of limitations, 11 L.P.R.A. 32, the

time to file would have expired on November 30, 1957. The

libel spécifically pleaded that laches did not apply because

of excusable delay and absence of prejudice to the respond-

ent. (R. 6 through 7).

The trial commenced on Mar¢h 21, 1960. During the

pendency of the action, prior to trial, the respondent caused

the deposition of the petitioner to be t taken and served

interrogatories upon the petitioner, which were answered.

In the deposition agd in the answers to the mterrog: atories,

the petitioner gave the names and addresses of the eve-

“Witnesses but the respondent made no effort to contact the

witnesses prior ‘to trial. (R. 151 and 153). The records also 3

indteated the eye-witnesses. ‘(R. 132, 135).

At the er) of the trial, the Court stated:

ro :

‘Of course, 1 should advance to counsel, I believe

iba

that on the question of unseawortbiness aud /or negli-

gence, the libelant has made a case, that as regards the

question of laches the libelant has shown. sufficient

are

: ‘

& .

excuse for the delay, and thai the only two questions

with which the Court is really concerned are the ques-

tion of the actual physical damage suffered by libelant

us a consequence of the October, 21, 1956 accident.

Whether his present physical statesistotally the re-

sult of that accident, or whether the accident _aggra-

rated in some way. his physical state SR

the 1951 accident, or whether the 1959 accident averas

rated and to,what extent the previous physical ¢ondi-

tion ofthe libelant.

‘*‘T believe that in order to decide that, it-is mdis-

pensable that the parties get a transcript of the medi-

cai testimony in the case, particularly | want to read

pretty carefully the testimony of the two main: ex-

perts, Dr. Rifkinson and Dr. Ramirez de Arellano.

Of course, | have no doubt that part of ‘the present

condition .of the libelant is -due to the 1956 accident,

but to what extent, and that’s the important thing, in

order to determine the damages.

‘‘T believe as to the material aspect of the damages

I want the parties to/discuss that more or,less what

appears from the evidence as to actual earnings of

this libelant, if there is any evidence as to it, because-

the evidence is very weak in that. That's all I need.

‘*T believe it isn’t necessary to file briefs or discuss

the exceptive allegations, and I had the opinion that

it would have been factual and unnecessary to discuss

those exeeptive allegations, They are based precisely

on what transpired at‘the trial.” They stand or fall on

the evidence offered here, so it is not necessary to

make a separate discussion of that. Indeed, I believe

that what I have said now disposes of the exceptive

allegations.”" (R. 153-154).

10 -

& Rana

Thereatter, the District Judge filed his opinion, findings

of fact and conclusions of law, A specific finding was made

that beans had been observed spilling from the drafts that

were discharged from the vessel throughout the unloading

operation. (R. 18). Another finding was made that the

beans scattered about the surface: of the pier eredted a

dangerous condition for the longshoréman. (R. 18). It was

also found that the cargo being discharged: was defective

and unseaworthy and that the shipowner was negligent in

permitting the broken bags to ve discharged and in failing

to furnish libellant with a safe place to work. (R. 18-19).

The District Court also found that the: respondent had

suffered no prejudice as a result of the delay in bringing

the action since the payroll records of ‘the stevedoring con-

tractor, produced at the trial by respondent, indicated who

were the potential witnesses, all of whom were present at

the trial and the respondent itself produced records indi-

cating the cargo damage prior to and at the time of dis-

charge and that medical evidence, including the treating

physicians, was also available to respondent. (R. 19).

The United States Court of Appeals for the First Cir-

cuit, in reversing, ruled that petitioner as a shore worker

was not entitled to the doctrine of unseaworthiness since

he was, ‘‘not even in a technical sense . . . about to co.

‘ona voyage’ **. (R. 27). .

Without any concomitant holding that petitioner was not

performing work traditionally performed by seamen or

that petitioner was not in the service of ihe vessel, the

Court then held, contrary to the conclusions of the District

Court, that respondent was not liable under the doctrine of:

negligence inasmuch it had neither ¢ f nor even a

right to cortrol the place where the aceident occurred.

(R. 26). ° . | .

The Court of Appeals also held that the action was barred

by Aches despite the specific finding by the trial Court that

respondent had suffered no prejudice as a result of the

delay. ees

In its opinion, the Court of Appeals admitted that its —_

holding was in conflict with rulings rendered by segeral ~

district courts but made no reference to contrary decisions ;

of the courts of appeals of other cireuits which had been

-eited to it by both petitioner and respondent, :

Argument ~ ;

Ix -Decwinc THat a LonxcsHoremMaN INuURED ON THE

Pier a THE DiswitesGacr Canco From a Vessen Is

Not ExtitLév to THE SAME Protection as a Longs

MAN INJURED Apoar p THE VESSEL, THE Cocrreor APPEALS

FOR THE First Circurr Has Deciwwep ax IMporranr Ques.

TION OF FrevenaL ApmMinaLtry anv Maritime Law Tuart Is

frrecoNCILABLE With a Statuaeaer Concress, AvTions-

TATIVE Decistons or THis Court any Decistons or at

Least Five Oruer Couvrrs of APPEALS.

lL. Uuseaworthiness

In Seas Shipping Co. v. Sterachi, (1946) “328 U.S. 85, 66

S. Ct. 872, 90 L. Ed. 1099, this Court extended the humani-

tarian doctrine of unseaworthiness to longshoremen per-

forming ship's service, which until recent times had beet

performed by members of the crew. The precise question

ef whether the same policy applied to longshoremen in.

jured ashore Was antie ‘ipated and left open in a footnote to

the majority opinion:

‘Tn this case we are not concerned with the ques-

tion whether the same poliey extends to injuries in- A

eurred ashore by a stevedore engaged in the same

work, a matter which is relevant héwever in Swanson

v. Marra Brothers, Ine, No, 405, 528 U.S. 1, 66S. Ct

869, Cf. GQ’ Donnell v. Great Lakes Dredge & Dock Ce.,

318 U.S. 36, 63S. Ct. 488, 87 L. Ed. 596.7" |

S28 U.S. 85 at p. 100; 66S. Ct. 869 at p. S80,

Prior’ te the decision below three other Courts of Ap-

peals did decide the question, and each of them answered

it exactly opposite to the way in which it was answered by

the Court of Appeals for the First Cireuit.

Strika v. Netherlands Ministry of Trattic, 2 Cir, 1990,

185 F 2d 555: cert. denied, (1951) 341 U.S. 904,

71S. Ct. 614,95 LO Ed. 1343. .

Pope & i albot, Inc, v. Cordray, 9 Cir, 1958, 258 F 2d

214.) :

American Export Lines, Inc. v. Revel, 4 Cir, 1999,

266 F 2d 82.

The bench and bar apparently have interpreted this .

Court’s denial of certiorari in the Strika case as an affirma-

tive answer to the question left open by the footnote quoted

above from Sieracki because when a case involving an in-

jured shore-based longshoreman arose in the Court of

‘Appeals for the Third Circuit, neither the lawyers nor the

Court raised any question.about the longshoreman’s right

to recover. . o

Haqans v. Farrell Lines, lie, 3 Cir, 1996, 237 F 2d 477.

ee ? °

1 The longshoreman’s duties in this case were primarily ashore but

he was injured aboard. The Court stated: “We hold that the duty of

providing a seaworthy ship and gear at the time of this accident ex-

tended to the appellee, whether or ‘not appellee was on board the ship

or on the dock.” 258 F 2d 214, 218. -

None of the Courts of Appeais have es er questioned thaat

the discharge of cargo was higtorically tRe awo7rk of seamen,

Indeed, there would be tio reason te question that propo-

sition.? ; \

Yu Streka, Judge Learned Hand, synthesized the Threb

opinions of this. Court veferred to in the qt notation at the

“outset of this ar gument,

“ed

Meas Shipping Co. Vv. Sreracki, (1946), S28 LS. 80,

66 S. Ct. STZ. 90 bL. Kd. 1099;

Swanson vo Marra Brothers, Tie. (A046), S28 US.

66S. Ct. $69, 90 LL. Kd. 1045;

O'Donnell Vv. Great Lakes Dredae and Dock (e.,

(19433, 318 U.S. 36, 63.8. Ct. 488, 87 L. Ed. 596.

O'Donnell held that a seaman injured ashore in the

course of his employment could recover against his em

plover, the shipowner, under the Jones Aer, 46“U S.C.

688: Swanson, however, held that a longshoreman injured

ashore could not recover against his employer, the steve.

dove, under the same statute, heeause Congress had limited

the remedy against the stevedore- pease exclusively toe

compensation, 33 U.S.CLA. 901, ¢f seq. But, on the same

day that this Court deeided Swanson, it also. decided

Sieracki, in which the doctrine of unseaworthiness was

extended to longshoremen in actions against the shipowner

Sas a third party.

~~ From the teachings of these decisions, Judge Hand eon-

eluded that a longshoreman injured ashore (as was the sea-

man O'Donuvell) could recover for unseaworthiness against

the shipowner (as could the longsboreman Sterachr). Judge

2 Jacobsen, Laws of the Sea (1819); Dixon v. The Cyrus, (D. Pa.,

1789) 7 Fe® Cas. 755, Case No. 3,930; Cloutman v. Tunison (Cir.

Court, D. Mass., 1833), 5 Fed. Cas. 1091; The Hudson, (WD. Pa.,

1881) 6 fed. 830; The Circassion, 1 Ben. 209, Fed. Cas. No. 2,722

(1867); Gilbert Knapp, 37 Fed. 209 (1889).

Swan dissented solely because he felt that any extension

of the doctrine of unseaworthiness to shore-hased long-

shoremen should he decided only by this Court. Despite

that dissent this Court refused to review.

341 U.S. 904, 71S. Ct. 614, 95 L. Ed. 1542.

Between the date of the accident of Strika and the de-

— eision of the Court of Appeals, Congress enacted the Kx-

tension of Admiralty and Maritime Jurisdiction. Act, 45

U.S.C.A, 740. Judge Hand felt that in all cases that arose

after the enactment of that statute, the question had prob-

ably been fereclosed because of Congressional Actiqu-—and

it may be Jor that reason that certiorari was denied.

DeSprt the decision of the Court of Appeals for the

Second Cireuit and the acceptance of this reasoning by the

Courts of Appeals for the Fourth and Ninth Cireuits, the

Court of Appeals for the First Cireuit has taken an irrecon,

cilabl@position. In so doing it ignored the Act of Congress,

which was cited by the District Court and fully briefed on

appeal.

Recognizing decisions to the contrary (but only District

Court cases), the Court below refused to ‘cross the gang-

way’’. By its decision the Boston Court has destroyed the

uniformity of the admiralty and maritime law that hereto-

fore had been aecepted by the lower federal courts, all of

which had recognized the longshoreman’s right to reeover

for injuries sustained ashore?

3 The two cases cited by the Court of Appeals are inapposite. In

Partenweederei MS Belgran y. Weigel, 9 Cir., 1962, 299 F. 2d 897,

the Court found thatthe libellant, tractor-driver,) was not engaged in

the type of work traditionally done by seamen, distinguishing Pope &

Talbot v. Cordray, 9 Cir., 1958, 258 F. 2d 214.|In Kent v. Shell Oil |

Company, 5 Cir. 1961, 286 F. 2d 746, recovers\ was denied because

the injury was ceused by a thing which was not ) part of a vessel or

its appurtenances. In a footnote, the Coxrt of Appeals for the Fifth

€ircuit stated: “We do not reach this _prdbleni spehifically and we ex.

’

a !

Valerio ve. American President Lines, D.C.S.D.N-Y.

1952, 112 #. Supp. 202. ae

Litwinowtcz ve Weyerhaeuser S.S. Co.. DA ELD. Pa.

1959, 179 F. Supp. 812. ;

Di Salvo y. Cunard SS. Co., D.US.D.NLY. 1959, 171

F. Supp. 813 ‘

Robillard vy. x L.. Brirbauk « & Co., Ltd., DAIS.DIN.Y

_ 1960, 186 FL Supp. 193.

Hagans v. Ellerman & Bucknall Steamship Co., D.C.

B.D. Pa. 1961, 196 F. Supp. 593.

Fisher v. United States Lines Company, D.C.E.D. Pa.

1961, 198 F. Supp. 815.

Language in the Court below may-also be interpreted to

mean that the Court of Appeals for the First Cirewit does

not believe that the broken condition of the bags of cargo

rendered the vesse] unseaworthy. If this be the case, the

decision below is.in direct conflict With authoritative de-

cisions of this Court and decisions of the Courts of Appeals

for the Second and Third Circuits.

Ryan-Stevedoring Co., Ine, v. Pan Atlantic Steamship

Corp., 1956, 350 U.S. 124, 76S. Ct. 232, 100 L. Kd.

33.

Amador v. AOS J. Ludwig Mowmcekels Rederi, 2 Cir.

1955, 224 F. 2d 437, certiorari denied, 350 U.S. 901,

76S. Ct. 179, 100 L. Ed: 791 .

Gindviile v. American Hawaiian Steamship Company,

3 Cir. 1995, 224 F. 2d 746. :

Curtiss v. A. Garcia ¥ Cia. 3 Cir. 1997, 241 FB. 2d 50.

¢ # . } os

press no opinion on our ultimate determination whether Strika v.

Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F 2d 555, certiorari

denied, 341 U.S. 904, 71 S.Ct. 644, 95 L. Ed. 1343, is correct. See

also Pope & Talbot, Inc. vy. Cordray, 9 Cir., 1958, 258 F 2d 214; and

Valerio v. American Prestdent Lines, D.C.S.D.N.Y. 1952, 112 F.

Supp. 202.” 286 F 2d 746. Footnote 14 at page 752.

16 .

\ a as

Reddick vo Me Allister Lighterage Lint ° (ir. TOs,

258 F.2d 297, .

Rich ve Ellerman & Bucknall SS Co., 2 Cir. 1960, 278

F.2d 704. |

Some of the Distriet Court cases previeusly cited in-

volved the same combination of factors as cid the instant

case —unseaworthy cargo and shore-side injuries. All Dis-

trict Judges (including the District of Puerto Rico} rely-

ing on the same authorities granted recovery.

Valerio v. American Presidents Lines, D.C.S.D.N.Y.

152, 112 F. Supp. 202. . ait

Robillard wo ALL. Burbank & Co.. Ltd. SDNY. 10600,

186 FL Supp. 195. } ane ee

dlagais v. Ellerman & Buchnail Steamship Co., D.C.

E.D. Pa. 1961, 196 FL Supp. 593. :

a cy

\ \

It is for this Court to now resolve fhe coutliet and con-

fusion created by the decision below.

(TL. Negligence —&

Iwgaddition to reaching fact conclusions different from

those reached by the District Court, the Court below re-

versed the deeree insofar as it was based on negligence

because the shipowner did not control the situs of the

injury... This proposition of law not only vitiates the Ex-

tension of Admiralty and Maritime Jurisdiction Aet but

it is also incompatible with, the authority as expressed by

this Court and other Courts of Appeals.

°The duty of the shipowner heretofore was not only to

provide and maintain a seaworthy vessel; he had also to

provide a sate place to work and to refrain from injuying

e a> is -

one by negligent conduct. Recentty, this Court detined the

duty of the shipowner as ‘exercising reasonable care under

the circumstances of each case.” “

Kermaree ve Compagnie Generale Trausatlantique,

: Seta ie cet Steere re ee NT Ak at alta ee

_° +1959, 358 U.S. 625, 79'S. Ct. 406. 3 L. Ed. 2d 050.

That case had to de with a shipboard accident, We mas

assume that if the decision belaw is the jaw, the shipowner

need wot exercise reasonable care as long as the injured

person is injured ashore.. But to make the assumption that

the decision below is the law, we would have to overturn

decisietis fram othe circuits to the CoHTary,

“The Court of Appeals for the Sixth Crreuit has held that

the failure to post a watchman on board constituted newli-

genee and the resulting injury to the shore-based long

shoreman Was compensable.

Linportal Ou Limited ve. Drtik. 6 Cir, 1956, 234 F. 2d 4.

‘Phe Court of Appeals for the Third Ctremt has held that

a shipewner may be liable for negligence ino permitting

dangerous methods of discharge,

Beard vo Ellerman Lines, Ltd. 3 Cir, 1961, 289 FL 2d

201, °

Again, this too, was a shipboard accident.’ But the de-

« @ ° . 7 :

cision by that Court and the instant one cannot be harme

nized, If the risk detines the duty to be obeved, the injury

- : . ; .

to the shore-based fongshoreman is just as tauel within the

specific risks of the dangerous discharge methods tolerated

hy the owner, as is the injury to longshoreman aboard?

* Relying on the Beard case, in a fact situation similar to the case

at bar, a District Court found thatthe shipowner had provided an

unseaworthy vessel, was negligent in permitting a dangerous method

of discharge and in failing to provide a safe place-to work. Hagans

v. Ellerman S&S Bucknell Steamship Co., D.C., E.D. Pa. 1961, 196

i. Supp. 593. .

—

is *

The Court of Appeals for the Second Cireuit has ratet

that a conditton created on thé pier by the negligent dis-,

charge of cargo ix compensable if a seaman is injured-even —

though the shipowner did not control the pier.

Marceau v. Great Lakes Transit Corporation, 2 Cir.

1945, 146 F. 2d 416. |

Substituting’ the petitioner for the seaman, Marceau.

under the teaching of either Sieracki or Kermarec, peti-.

tioner would be entitled to recover. The conflict created

between the Courts of Appeals for the First and Second

Cipeuits by the-deesiion below.should be resolved by this

Court. -

B. Is Decioiye Tuatr rue Peririoner’s Cuaim Was*

Barrep bf Lacnes, tHe Covunr or Appeals row THE

First Crnfvat Flas Deciven a Question of Feperan

Maritime Law DirnerLy in Coneticr Witn tHe Av-

THOKITATIVE Decisions or THis Cover, axp THE De-

cisions or Orner Courts or Apreats.

In Gardner v. Panama R. Co. (1991).342 U.S. 29, 72.8. Ct.

12, 96 L. Bd. 31, this Court stated:

** Although the existence of laches is a question pri-

marily addressed to the disefetion of the trial court,

the matter should not be determined merely by a refer-

-ence to and a mechanical application of the, statute of

limitations. The equities of the parties must be con-

‘sidered.as well. Where there has been no inexcusable

delay in seeking a remedy and where no prejudice to

the defendant has ensued from the mere passage of

time, there should he no bar to relief.

42 U.S. at page 30-51, 72. (‘t. at page 13.

enn

- The trial judgé did not apply thé statute of limitai us.

mechgnically. He determined thai there was hoth excusable

delay and that the respondent was not prejudiced, The

Court of Appeals disagreed and. said that laches barred ghe

action. - =

The delay in this case Was two vears, two months and

nineteen days from the date of the occurrence.® At the

trial, eve-witnesses and doctors testified and certain deen-

mentary evidence was presented. The respondent intro.

duced an accident report and payroll records which dlis-

closed that the only potential eve-witnesses were the ones

actually produced by petitioner. In a deposition and

answers to interrogatories the names and addresses were

furnished. ‘Not ence in the sixteen months between the

filing of the libel and the trial was any attempt made by

the respondent to contact these Witnesses or to find out

what happened. Their destimony was believed by the Trial

Court. i Pe bas

in addition to these witnesjesthere were staiements and

medical records of the State yew Fund. The respond-

ent itself introduced al] the\records proving that the cargo

obtained a physical seaain y mtu of petitionery-and produced

expert witnesses, -

The ruling of the Court| of Appeals on this issue dis-,

regards the pronouncemeijts ef this Court and: conflicts

with decisions in other circuits.

511 L.P.R.A. 32 , .

® Analogous statutes of limitations for unseaworthiness are usually

longer. Sometimes they are as much as six (6) yelrs. Le Gate v.

The Panamolga, 2 Cir., 195, 221 F. 2¢ 689.

The Jones Act, 46 U. S.C.A. 688, has a three (3) year statute of

limitations. The discussion by this Court of the application of that

statute in a neglig@nice action combined with one for unseaworthiness

is illuminating. McAllister v. ars Petroleum Co., 357 U.S, 221,

78 S. Ct. 1201, 2 L. Ed. 2d 1272. ”

‘was damaged prior to and during discharge: Respondent |

Claussen v. Mene Grande Oil o.23 Cir. 1960, 275 eee |

108.. ‘ ‘

Meaay. The Malula,o Cir. W961, 291 BO 2d 41. bs

What the Court of Appealsfor the Fifth Cireuit said in

; f, ; ? ae

the latter ease ‘dis pertinent here: .

“What it (the respondent) knows is of nod real help.

Sut on this record there is no indication that if it

could learn move, it could extricate itself’ frome the,

inexorable consequentes: of the American Maritime

concept of seaworthiness. .

291 F.2d at page 420.

(

The reasoning of the Appellate Court in the instant case

would make it impossible to ever appty the equitable doe-

trine of laches. Unlike the Court of Appeais for the Fifth

Cireuit, it is willing to mechanically apply limitations to

cut off the *tawesome consequences’? of unseaworthiness.”

A principle of admiralty law firmly established by this. .

Court eleven vears ago Tas. been eroded. The standard in

the First Cireuit is not the same as in other Courts, A doc-

trine, the purpose of which was the mitigation of the harsh

mechanical application of statutes of limitation, has been

perverted toserve as a ‘bar to recovery in an aetion which

-in many jurisdictions would not even be barred by limi-

tations.

7 The dissatisfaction of the Court below with that doctrine was

clearly expressed in Akitchell v. Trawler Racer, [nc., 1 Cir., 1959, 265

F. 2d 426, reversed (1960), 362 U.S 539, 80S. Ct. 926, 4 L. Ed.

24-941.

. P|

pe A

C. The Coerr or Arpeats ror THe Fimsr @Cirevrr thas

“Vion ai kb THE STANDARD Sev py Tuis Covir in Review

ING FInpincs or tHe Disrarer Courr Serrina Wires

= e

. The tirdings of the District Court may not be set aside

unless clearly erroneous,

MeAllister:v. United States (1994) 34s 8: 4 aoe.

Ut. 69 L. Ed. 20. aS °

In this particular case more than most, this doctrine

warrants respect. The Witnesses testified in Spanish, a

language in which the trial judge is Haent. The oppor.

tunity to judge credibility and the importance or demeanor

evidence is unique. Nevertheless. from oan independent

reading of the cold, tre asiaited record, the Court of Appeals

made independent find.ogs of fact, reversed findings of tact

of the trial court which resolved confliets in the evidence,

cand determined the weight to be given to exhibits as agains!

testimonial evidence, | 6

The Court below pointedly emphasizes that a bag of

beans which the trial ecurt fownd broke open in mid-air

acinally broke open upon hitting the dock after a fail trom

mid-air. Then the Court of Appeals inenrs in oan error of

fact by finding that no conduct in whieh respondent par

ticipated Was responsible fer the beans on the deck, com

nlerely ignoring, a specific fineling of the trial court and

testimony by all of the faet witnesses to the effeet that

>) hears were spilling from draits of Lroken bags throughout!

the unloading operations, and correberation in respond.

ent’s Exhibit 10 showing broken bagged carge’ ;

Asa basis for reversal, the Court of Appeals so relies

ona prior statement of libelant, allegedly inconsistent with

his ‘testimony on trial, In so doing, the Court disregards

the cross-examination to which petitioner was submitted

(R. 37-88} in the presence of the trial court and which |

apparently clarified any inconsistency to the satisfaction

of that court, and also disregards the uncontradicted and

unimpeached testimony of al] the other fact witnesses.

Continuing this apparent trial de nove, the appellate

court finds that the memories of the witnesses had become

impaired because they testified that rice and feed had also”

spilled fror drafts, while respondent's records showed no

rice or feed being discharged until after petitioner’s acci-

dent. The witnesses stated the accident oceurred in. the

afternoon. Respondent’s Exhibit 2 indieated tke accident

‘oceurred in the morning. Not only does the Court of Ap-

peals vitiate the trial court’s prerogative of determining

the weight .to be given to any particular evidence, and the

comparative weight of testimonial as 1gainst documentary

evidence, but it also substitutes the appellate court’s con-

- clusion for that of the trial court on a disputed issue.

The Court of Appeals even goes so far as to make a find-

ing of fact contrary to both the testimonial and documen-

tary evidence in the record. The Court states:

‘‘And’ while the records did in fact show spilling

‘from the drafts, they showed none near the hatch

opposite which libelant was vorking.’’ ds

- The Court below disregarded the testimony of the wit-

nesses. In this respect it also’ disregarded respondent's

documentary evidence (Exhibit 10) whith shows broken

bags in all hatches of the vessel except number 5. Peti-

tioner was working-opposite number 2.

Once again, as in Guzman v. Pichirilo, decided by this

Court on May 21, 1962 (No. 358, October Term, 1961), the

Court of Appeals for the First Cireuit has departed from

*)*

—*

the standard established by McAllister v. United States,

supra, and has reversed findings of fact made by the Dis-

trict Court for Ae District of Puerto Rico. Those findings

were based on substantial evidence and some on uncontro-

verted evidence. The reversal can be sustained only if the

findings were error as a matter of law. In sv holding, the

Court of Appeals is in direct conflict with the decisions of

every other Court of Appeals and District Court that has

ruled on the issues of law presented in this case.

Although it may not be the function of this Court to

correct mere error by way of certiorari, nevertheless, when

a lower court has so openly departed from the judicial

standards established and repeatedly invoked by this Court,’

ai exercise of the power of supervision is called for to

maintain uniformity and authority in the law.

3 - “i

Conclusion

For the foregoing reasons, it is respectfully submitted

that this Honorable CouftNissue a writ of certiorari to the

United States Court of Appeals for the First Cireuit in

this cause and that this Court should review and, reverse

the decision of the Court of AppealS\and reinstate the

decree of the United States District Court Toxr_the District

of Puerto Rico.

Harvey B. NacuMan

P.O. Box 2407

San Juan, Puerto Rico

Counsel for Petitioner

Harvey B. NacHMan

Sran.ey L. FELDSTEIN

Of Counsel.

Appendix

United States Court of Appeals

For the First Circuit

No. OSST.

WATERMAN STEAMSHIP CORP.,

KESPONDENT, APPELLANT,

FEDERICO MARIN GUTIERREZ,

—-—_LIBELANT, APPELLEE.

[193 EF. Supp. 894] R

LPPEAL PROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

e Before Maureper*, ALpricu and Smirn’,

Circuit Judges.

Antonio M. Bird, with whom Hartzell, Fernandez S Novas was on

brief, for appellant.

Harvey B. Nachman, with whom Nachman & Feldstein was on briet,

for appellee:

OPINION OF THE COURT.

April 11, 1962.

Aupricn, Circuit Judge. This is a libel by a longshore-

maw fof personal injuries sustained on a dock at which

respondent’s vessel was unloading, allegedly by reason of

‘“impropet storage of cargo on said dock.’ In addition,

there were general allegations of unseaworthiness of the

vessel and of negligence of its master, officers and crew.

The district court made findings in libelant’s favor as to

*Sitting by assignment.

OM threvesscl the

unseaworthiness and negligence and assessed damages. It

rejected a defense of laches. Respondent appeals.

The accident oceurred on October 21, 1956. Libelant was

in the employ of a stevedore unloading respondent's vessel

pursuant to contract. The first notice respondent received

of the claim and, for all that appears, of the injury’ was

when suit was brought on January 9, 1959. “By this date

more than twice the period ‘of the analogous statute of

limitations had elapsed. The.court found, “While working

on the deck Jibelant slipped on [some] beans, twisted: his

torso and fell upon his buttocks. The injuries sustained by

libelant were proximately caused by this unseaworthiness”

place

With

ah ’ . ee @& —

failure to furnish libelant with a sate

sufficient excuse by the fact that he consu gounsel within

the statutory period, and concluded that respondent was

not prejudiced by the delay because the Witnesses remained

available and respondent had its own ‘trecords indicating

the cargo damage.”’ ee

The first question Ls the responsibility for the beans. The

court found that many of the bean bags were degective,

that coopers were employed in sewing them up; that none-

theless beans were spilled trom the drafts as they were

being swung ashore. ‘On one occasion, according to: the

records produ od by respondent and admitted into evidence,

a bag broke open in mid-air spilling its contents all over

the dock. This event occurred while a draft from Hold No.

1 was in mid-air and still attached to the vessel. Hold No. 1

is immediately adjacent to No. 2 forward. Beans scattered

1 Even libelant’s employer had no prior nptice of the basis of the

present claim. Libelant told the State Insurance Fund’ not that he

slipped, as now alleged, but that he fell because he was carried by the

sling due to improper action of the winchman.

2 What was meant by “this unseaworthiness” will be later discussed.

¥,

- - ! |

about the surface of the \pier caused a dangerous condition

for the longshoreman. The cargo being discharged was de--

fective and unseaworthy.| The ship\owner was negligent in

permitting the broken and weakened bags to be discharged,

when it knew or should have known that injury was likely

to result to persons in tha service of the ship who had to

work on and about the spilled beans. The condition on ihe

plier was caused by the respondent's unseaworthy cargo

and its lack of care. In pern iitting this condition to rengain

existent, the respondent failed to furnish fibelant with a

safe piace to work.”

The quoted portion of the| court’s opinion contains sev-

eral errors. In the first place, the respondent’s reeords do

not show that the bag broke open in mid-air, but show that

it fell from mid-air, and broke ‘when it hit=the deck.

Secondly, the bag fell, and beans, were spilled, whether

from there or anywhere else, Dy Ho-eenduct in which re-

spondent was shown to have participated. Cf. Rodillard v.

A. L. Burbank & Co., D.C.S.D.N.Y.) 1960, 186 F. Supp. 193,

197. And it is undisputed, with respect to ‘‘ permitting this

condition to remain existent’’ on the pier, that respondent

had neither control of nor even a right to control that loeus.

The court’s findings as to respondent's negligence cannot

stand.

There remains the finding of unseaworthiness of the

cargo. One speaks of unseaworthy cargo really im terms of

result: rather, it is the unsafe condition, created by -the

cargo, which is felt to be a violation of some absolute duty

of the shipowner. We recognize, of course, that a ship-

owner’s duty is not to be evaded by calling a Jnan a long-

shoreman ang, plaving him in someone else’s,gagploy. Seas

Shipping Co. v. Sieracki, 1946, 328 U.S. 85. But while

3 1f there could be said to be any ambiguity in-the record (which

we doubt) it is clearly resolved by reading the entries as to similar

occurrences at other hatches.

labels cannot avoid igbility, they. ‘should not be used to

create it. This is not’a case of a defective piece of ship's

equipment, or of a dangérous condition aboard the ship.

Nor is it a case of acclaimant whose work caries him both

on and off the vessel, At best, lading, which was not part of

the ship, which did not make the ship unsafe, and which

had left the ship. is being used to impose absolute liability

upon the shipowner for a condition caused by the lading to

1 shore worker. Some may feel this gangway “has been

pee See, ¢.9.. Hagaus v. Ellerman & Bucknall SS. Co.,

D.0°.K.D.Pa., £961, 196 F. Supp. 593; Fitemaurice v. Calmar

S.S. Corp., D.CLE.D.Pa., 1961, 198 FL Supp. 304. But it

seems to us that to extend such protection disregards the

whole origin and purpose of the dectrine of unseaworthi-

ness.4 True, such a worker may be broadly argued to be in

. the service of the ship. But not even im a technical sense -

was he on or about to go ‘ton-a voyage.”* Pope & Talbot,

Inc. v. Hawn, 1953, 346 US. 406, 413. His dangers were

not the same: /bid. We see no difference to a land em-

ployee in source, cause, risk, or effect between beans spilled

on a dock, or on a trucking platform, or of a warehouse

floor in Denver. The very fact that unseawortbiness obliga-

tions are ‘tawesome,”’’ Aent v. Shell O Co, o Cir. 1961,

286 F.2d 746, 752, suggests that they should-not be handled

with prodigality. We _are unwilling to recognize one here.

A recent case somewhat close on the facts is Partenwee-

deret vy, Weigel, Cir, February 162, F.2d . There

libelant was a dock worker engaged in driving a tractor

e a : + \

*Singularly enough, the doctrine of absolute tort lability’ for in

juries ashore, to the extent that there have been cases, seems to exist

solely for the benefit of longshoremen. Whether those decisions repre-

sent the independent views of the courts concerned, or are merely

thought to be required by those of the Supreme Court, may be prob

lematical. Cf. Robillard v. A. L. Burbank & Co., supra. But we know

that-on at least one occasion we ourselves have erroneously exaggerated

those views. New York, N.H. & H. R.R. vy. Henagan, | Cir., 1959,

272 F.2d 153, rev'd, 1960, 364 U.S. 441.

handling lumber on the dock which was about to be loaded

onto réspondent’s vessel. He was struck by a defective

ship’s beem, The court found that libelant was not per-

forming traditional ship's work within the scope of the

obligation of seaworthiness. While, the court noted a dis-

tinction between cargo not yet connected with the ship's

loading gear and eargo actually being loaded, it is in com:

mon with us in recognizing limits in this area to principles

of absolute liability. In a way the facts were more favor-

abie to libelant than in the case at bar beeause it was the

ship’s gear that was defective and not merely cargo previ

ously aboard. + .

the defense of laches because it found that 'belant had a

valid excuse for the delay and because respor.dent was not

' prejudiced. The only suggested excuse was that libelant

consulted courisel within the statutory period. This has

‘never been regarded as extenuation. Wilson v. Northwest

Marine lron Works, 9 Cir., 1954, 212 F.2d 5)0; Marshall v.

International Mercantile Marine Co., 2 Cir, 1930, 39 F.2

551: McGrath v. Panama R.R., 5 Cir., 1924, 298 Fed. 305.

Assuming that absence of excuse is not fatal if there has-

been no actual prejudice, but cf. Taylor v. Crain, 3 Cir.,

1952, 195 F.2d 163, we think that such lack of prejudice has —

been shown only in part. The court's first basis, that the

witnesses were still available, was not equivalent to an

opportunity to examine them at an earlier date. Cf. Redman

v. United Fruit Co., 2 Cir, 1949, 176 F.2d 713, svc, 2 Cir.

1950, 185 F.2d 553, It was demonstrate:| that the memdries

of these wittiesses had become impaired. While they testi-

fied to loose beans falling from the drafts, they also testi-

fied similarly as to rice and feed. Yet defendant's records,

of which the court quite properly made a point in another

connection, showed that no rice or. feed was discharged

until after the accident. And while the records did in fact

show spilling from the drafts, they showed none near the

hatch opposite which libelant was working. The testimony

ax to the defective-bag source of the beans on which libelant

was found to have slipped is highly questionable. We think

as to this portion of the claim it was error to find that

respondent was not prejudiced by the-delay.

There is a similar weakness with respect to the eviden-

tiary proof. Libeiant cannot recover for beans that spilled

from the drafts without some affirmative showing that they

were the ones upon which he slipped. With an admitted

substantial source of a large quantity of beans—the

dropped bag—it seems to us that any finding that libelant

fell, instead, on beans which spilled from defective. bags on

the drafts would be entirely speculative. For either of

these reasons we could not recognize a finding that libelant’s

fall was so caused.

On the pther hand, as to the dropped bag, we quite agree

that since respondent's own records showed it, respondent

was not prejudiced. This, however, dues not help libelant.

Even if it could be found that libelant slipped on beans

from that source, there was no evidence that this bag was

defective, or that any defect caused it to drop. For all that

appears there may have been improper operation by the

winchman. His negligence, as already stated, was not the

responsibility of the respondent. Agcordingly, there is no

basis for supporting a finding for libélant on any theory

Réspondent’s ‘motion for judgment ‘should have been

allowed. |

Judgment will be entered vacating the decree of the Dis-

triet Court, and remanding the case to that Court with

_direition to dismiss the libel.

5 Strictly, it must be observed that the court’s attributing libelant’s

fall to beans from defective bags appears to be based primarily on its

mistaken finding that a bag broke in mid-air:

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.