# Petition for Writ of Certiorari — Gutierrez v. Waterman Steamship Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0218%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 373 U.S. 206 ## Text | Vi ; e oscar : o é rome Stn 11 ‘ \v ‘ = — = ot ~ samen \ a \ ee = : ho , in the oes Supreme Court of the United States OQeroper Tenm, 1962 : e ») | Noy ) cy J 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. © a een EneSSSASE ¥ ey 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 * Desienimanatemaail : ° se Shae e@ a « . ‘ N 2° Nb . - We : INDEN P ‘ |’ ior 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 a 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: - A. If Deciding That a.Longshoreman Injured on the Pier During the Discharge of Cargo From oa 16 2. 7 1 Pnidex ra ? “ : ('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 .*., 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 7 e *y _ «a z . “i a "“ > P * Page cA) in the Supreme Gourt of the Rated State hk PoOBEL ty Toe. ae No. RE DERICO MARIN GUTIERREZ, PETITIONER, WATERMAN STEAMSHIP CORP. RESPONDENT. Pt 2 ° PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. 6 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 ’ oo 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. 4 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. r) 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 Ti 3. The questions presented for review are: * y 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- e 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 > Ta ‘ ™ ,' 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. » 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. 2 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. : Pe & 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 8 of 17 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 19 - 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 | e 20 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. e ( 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 oe 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 A JURY IN ADMIRALTY, © = e Go . 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 2 Cy 22 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. S 24 Appendix United States Court of Appeals For the First Circuit No. OSST. WATERMAN STEAMSHIP CORP., KESPONDENT, APPELLANT, v. 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. es 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. pe ¥, AS 26 - - ! | 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. 98 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. + . There is a more specific difficulty. The court overruled © 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 29 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. a 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0218%3A2. Public record. Not legal advice.