Respondents Brief in Opposition — Swam v. United States

4

>

9

— ~—— petri

: “fF : BILED .

- "LIBRARY =

a : SUPREWE COURT. ‘U. &

"NAVIGAZIONE,

~ Petitioner, :

OREGON STEVEDORING COMPANY, INC.,

.-

ee

= On Writ of Certiorari to the United States Court of

— for the Ninth Circuit

BRIEF FOR PETITIONER

-

-

' Erskine Woon,

. Erskine B. Woop,

Counsel for Petitioner,

ea »- 1310 Yeon Building, i.

hao Gy siete eeexters ets ® : » Portland 4, Oregon.

STEVENS-NESS LAW PUB. CO.. PORTLAND. ORE. -

Argumen eos cc cee ek ae

sihcccscdaacik Pacino Waiventy. 6

- Shipowner’s Right to" Indemnity Is Based on

a ee

: Sievidioce's Warranty Is Absolute as: pa Steve- .-

dore-Furnished E

-, Public Policy to Avoid Risk of Injury... 18

‘ Fairness and Equity ‘Require | Placing the ‘Ulti- :

: mate Loss, on the Stevedore.. <a PSG LG REST ES 20.

>:

mit A meee eee ing we 2791013

Vv.)

| : kel | rx i, 0 F Sa 13 fe va

gg Sere (1884)

Fd 875 (9-Cir 1960). etNa.

vy. Trawler Racer, 362 US 539 _..6, 7, 15, 20

dy. The Yaka, 373 US 410, 19 L Bd 24 448

5,9, 10, 11,12 -

| Revel % Amer : Supart ‘Lines,- 162 F Supp 279, affd rua

26d Rag (4 Ci 1959) =.

“US 124 St BD og ay 2,4, 7, 9 13, 1

Int, 2747—~ '

3°

Seas. Gol v. Sieracki, 328 US 85° 20...

Watermian SS. Corp. v. Dugan & McNamara, 364

421 ..2, 9, 10, 13

‘$8 Co. v. Nacirema Co. 355 US 563.

| -wause: 1254-(1): ; ay :

et 905 (Longahoremen and Harbor Workers

: ll

: ‘sitet Galen Ait, See, 1861). Raat og OO :

ee | ~ foe : te

Williston on, Contracts, Rev Ed 1936, § 982, § 1041.14

4

j #8}

“4. | > Ocroser Tena, 1962, —

is Meee,

a

‘ PPALIA’ SOCIETA PER AZIONI Dr

_—e

. ‘ — :

é s

° * «

egos

_ OREGON STEVEDORING ‘COMPANY, INC.,

X t 4 : a ——

“Respondent. = ie

Sa beecs iss

. o

Bg det

a:

*°

=

.

On Writ of Certioari to the United States Court of eee

i eacosnts for the Ninth Circuit .

a

3 a aiieiies

+ a. ; ‘ Son.

.

lp

“ GPINIONS BELOW

The’ opinion . of the district court (R. 21:73): is unre-

*” ported. The majority and -dissentingsopinions in the

Court of Appeals for the Ninth-Cireuit (B.-43-54, 54-

~ are ——" in 310 F2d 481, 488; 1963 AMC 79, 89. .

Teng ee

ie

i

%

a

whe

*?

.

ae Nag ars Reese,

a pes) $23 eae ?

~ . : Sei, See a,

vee cw thes. ® o

€ \ er eee :

in jodaee cd tae Const of Aponte wen conerel *

ae October 25, 1962 (R. 64-65). A timely petition for re-

_ « Inbatinig wan’ denied, with dissent, on December 5, 1962 )

- ” (R. 65). ‘The petition for a writ of certiorari was filed |

February. 27, 1963, and granted on April 15, 1963 (R.

66; 372 US 963). The jurisdiction of this Court is

pap ricattg eit

C5 a <3

“

_ QUESTIONS PRESENTED

1. Dats the dvglied wermeaty owed by 0

Presta oo orga sony area

ranty that gear and equipment furnished and brought

| aboard the veusel for ts own sie shall be reGonably

| suitable for its intended: upe? ain

2. Is 2 shipowner entitled to indémnity against it

beooglit. aboard. the vensc! for‘ use in the stevedoring

' operations equipment which ‘is’ unSuitable because _of

"datent defect, and thertby subjected the shipowner to

liability. for damages to the stevedore’s longshore em-

ployee , by the defective er

- ~ 1 Ryan Stevecore Co. v. PRan-Atlantic ‘S.S. ‘Deus, 350 US 124:

| -Crumady v. The J. H. Fisser, 358°U.S. 423; Waterman SS. om.

ie Dugan & McNainara, 364 US 421. ans

°

-

td

ee

eh

tage : 3 ee

Be oer ‘ c For ol Pas.

See eto oe we

Se 5 " : ie ;

;

Bee) cs %: % : ei Aye

| oe (4 Beet:

eA 2 Sia > oA opt Ges Sa oe v

e A ‘

* .

r) - e

STATEMENT OF THE CASE alata

~ Oi November” 19, 1958, pursuant toa written con-_

Lo «edge ee alaan aipesieat: Cebbpid Shoeor :

__ ing ‘Company was performing stevedoring services, on’

petitioner's vessel, the Antonio Pacinotti, in the harbor

— eibcae ae

SOR Se ee pea

furnish all labor and supervision and also “all ordinary qe

gear for the [performance of -the services . | . and usual

‘bppliagces used for stevedoring” (R. 23a). ‘For use. in

Sage chee vee c tar w pos ee fom

cunts dean sui; soe, rigged arid at all times

uséd- under the exclusive, supervision and control of the

_ stevedore (R. 25).

si gas cack ok dahag too Seok, denn ts

"- ‘stevedoring. company as a part of its. stevedoring serv-

: ices, while one Griffith, a longshoreman employee of

"the stevedoring company, was pulling on a. tie-down

. . Tope, the broke, resulting in injury’to Griffith.The =~

‘ * yope broke. use it was defective and unfit for the

purpose intended (R. 25). The. defect -was. not visible,

‘but latent, and there was no proof of negligence on the

é part of the stevédoring company. he

Griffith sued petitioner in the ‘state court and re-—

- covered a judgment,’ which petitioner paid. Petitioner —

: shipowner ‘then brought suit for indemnity against re-

~~ the acute ee in the United States

?

.

. :

‘negligence, and. docs not include a warranty that equip-

: ‘tive equipment regardless of negligence. eee 9

"lil Gil tap hives ok Onres, conan

ee _ based upon the stevedoring contract, a maritime con-

ae

ce

_ above, are set forth ip full in the Record, pp. 23-26.

Winding. no, snalignaye on the past af the. stryediee, aod

all aBiity‘enept for negligence, the distict court en

ine Cosi et Apeasin sttenad: te ac aoins kei

‘sion, holding that the implied. warranty owed by a

stevedore to a shipowner is merely a warranty against

ment furnished and brought aboard the vessel by the

stevedor€’ shall be suitable for intended use. Judge —

Jertberg dissented, aggeeing w h thie decision of the Court

of Appeals fo- the Second Circuit, in Booth S.S. Co. v.

Meier: ® Oethat, 262 F2d 310 (1958), that the contrac-

tor’s implied warranty is breached by furnishing defec- 7

Hi fs Sea ASIC Gh A Celie dntes vice

‘thet the contracting stevedore owes to its ‘shipowner

Customer an implied warranty to perform the stevedor-

ing, eagvices. i) @. wortkmantibe: manger, and with com-

a mk a es

3 Ryan Stevedore Co. v. Pan-Atlantic S.S. Corp., 350 US 124:;.

: and other cases cited in Note 1. ~ eo Sg

=

x

4 5

‘

eid Giiebiees tains husk eli: Sapa wsdialiabiheent

the vessel various. materials and equipment for ‘their

own use in the stevedoring operations. The shipowner -

is liable under its absolute warranty of seaworthiness to .

a longshoreman injured by unseaworthy ‘equipment fur- ie

-nished and brought abdard by the stevedoring contrac-

__.tor.* Therefore, the. shipowner must rely on the steve-

hore contractor. to furnish equipment reasonably suit-

_ able and fit for the - intended. By furnisKing de-

he? fective: equipment resulting in ‘injury, the stevedore —

imposes a vicarious liability upon the shipowner. There-

‘fore, thé contracting stévedore should be held to an

implied warranty that: the equipment it furnishes will

be suitable for.the purpose intended.

ks ‘Since the stevedore’s liability for indemnity is based :

uipon contractual warranty, proof of negligence is not

_ required. The principles stated in Ryan, and other de-

: cisions of this“Court considering the extent of the steve-

dofe’s warranty, establish that the stevedore owes ‘to ee

. the shipowner 4 contractual warranty of suitability of

equipment, and is liable to.indemnify, the’ shipowner _

_ Masia 6 Hheeeomnbla Tome: reacting trom Lgencti of ach oe

‘warranty.

Thie reasoning of this Court in the recent decision in-

"Reed v. The Yaka*® clearly establishes that the ultimate__!

_, loss falls upon the independent contracting stevedore —

who furnishes latently defective equipment:

4 Alaska S.S: Co. v. Petterson, 347 US 396. : ;

- $373 US 410, 10 L Ed 2d 448 (May 27, 1963). .

79

t

—

.

-—*

WN

pA Mies achleaiis daeed dca nico’ :

" wacxéaty te Socumparaile: $0.4 miansstacture:’ warranty

, 88 to the soundness of its product.” Therefore, the steve-

_ Gore's warranty ‘aa to its equipment, like the manutac-

turer's ab to its product, is absolute. |

It is the stevedore who owns, furnishes and brings

_ the equipment aboard the vessel, and. has exclusive con-

trol over its use. ‘The shipowrier ‘has no control’ over

such equipment.. The strong. public policy to avoid or

minimize the risk of injury to/shipboard employees re-

quires placing thie ultimate loss upon the stevedore, who

is in the best position to eliminate the hazards.

2 It is only fair to place the. ultimate liability upon

the stevedore. contractor, who, by furnishing defective

econ

ein

lectegrovnd end Giecematanens of tho: Wersendy.

pe The shipowner owes to seamen, Yongshéremen, and

- other’ doing the traditional work of seamen, an abso-

AG

lute warranty of seaworthiness. Seas ‘Shipping Co. v.

Sieracki, 328 US 85. This warranty is absolute and does

not depend ufon negligence. The standard of seaworthi-

ness is “reasonable fitness” and “reasonably suitable”

for the intended purpose. Mitchell v. Trawler o 362

US" 539. e ee fo, cH ;

Shipow/ters. engage. contracting evesores: to per-

" form the: work of loading and wi ing the. vessels. It

is now well settled that the: ster contractor owes.

ee

ons

~ 95 +

a

gt tdlasabliine: tolbinas an natibebins Saiiedky Lo

paberaamira masse tesenc capone “-

safety. Therefore, the .stevedore contfactor. must in-" es

demnify the shipowner for damages.the shipowner may

__, be called upon to pay to » longshoreman injured as a.

romult ef cha! etivedone’p flitee. Se: partontn to services &

ina manner.

: Datuk ds wok siety loc Vite wioasl vee.

. sels—they also bring .aboard all sorts of gear and

. equipment, such as blocks, shackles: cables, slings, trope’, i.

_ ‘hatch tents, pallet boards,. tract6rs, stowing winches,

_ : argo hooks, dollies, or trucks, and other specialized

Ghar fos handling cargo. ts is

ssi lb Gab Rin enrolls tnceched a bic.

: _ tent,ewith “appurtenant tie ropes, pursuant to its, con:

a tractual obligation to “furnish all ordinary gear “for the

performance of the services . . . ee

used for, stevedoring” (R. 23a). se ‘Ne

oe the stevedore contractor faradeee” unseaworthy s

Se equipment which results in injury to a longshoreman,

the shipowner is thereby subjected to liability ‘to the

injured man under its absolute warranty of seaworthi-

" ness. In other words, the Shipowner's liability under its

warranty . of seaworthiness applies even. to defective

* equipment brought aboard by the independent contrac-

‘tor over which the shipowner has no control “Alask aska~

SS. Co. v. Petterson, 347 US = Mitchell Vv. Trawler

Racer, supra, p. 549.

6 Ryan Stevedore Co. v. Pan-Atlantic: ‘SS: ‘Corp. a 350 US 124;

Crumady v. J. H. Fisser,. 358 Us. 423;. Weyerhaeuser S.S. Co. v.

Nacirema.Co., 355 US 563. :

-

° = .

ee ee

; - -d 4

a

| Sk hans thi oepiting aeeoes:t0:8

specialist, tind ‘felies upon the’ contractor's expertise”

Since* the shipowner is held to. warrant seaworthiness ae

"of equipment furnished by. the

“owner must necessarily relyon the stevedore to furnish

“equipment that meets the standard of seaworthiness.

"As in the present case, the stevedore contractor nor-

,mally owns the equipment, brings it aboard the vessel,

‘and retains exclusive control over its’ use in the steve-

doring operations (R. 25). The shipowner has -no con-

= trol. over the equipment. thy tonal che defectives

: equipment. which caused the injury, the stevedore has

thereby visited liability upon the shipowner. Therefore, ©

in all fairness, the stevedore contractor should be held to

warrant that thé equipment furnished is suitable for the

purpose, and should indémnify the shipowner for breach ong

Sel goin camueaiel

_ Stipa Right ndarny Bad Pines

| ____ Stated in this Court’s Prior Decisions _ -

- The precise auesyeh, which involves gtevedote-fur-

-nished equipment unsuitable because of latent defect, :

without, proof: of negligence by the stevedore, is of first

_ impression before this Court. However, the shipowner’s | |

‘ right. to indemnity follows ‘logically from the Principles es

"announced in this Court's "Bor, decisions which “have

4

7 Hugev v. Desanal int. as vane ee eas

politan Stevedore Co. '‘v. Dampsk Int., 274 F2d 875 (9 Cir 1960);

Revel v. Amer. Export Lines, 162 F ‘Supp 279, ‘affd 266 F2d ‘82

(4 Cir 1959).

is,

x << ; e

¢ é ‘ me “ : : 2

considered ‘the stevedoie’s warranty to the shipowner.*

ce In Ryan Stevedoring Co. v. Pan-Atlantic SS. Corp,

~ 350 US 124, the con' :

Hite es Soe as a result-of which’ a dis-

_chezging longshoreman was injured.~This’ Court held

that the shipowner was entitled to full indemnity against

the stevedore contractor for the damages recovered by —

the injuréd longshoreman, upon the ‘ground that the =

_ stevedore had bresched its impliedwarranty to the

“The shipowner her holds petitioners uncon

troverted agreement: to perform all of the ship-

_, owner's stevedoring operations at the time and

place where the*cargo in question was loaded. That

agreement necessarily includes petitioner's obliga- ~

‘tion not only to stow the pulp rolls, but to stow

° them properly and safely. Competency and safety

of stowage are inescapable elements of the service

undertaken. This obligation is not a quasi-contrac-

_ tual obligation implied in law or arising out of a

noncontractual éelationship. ft is of the essence of _

+ petitioner’s stevedoring contract. It is ‘petitioner's -

warranty of workmanlike service that is comparable

‘ to a manufacturer’s warranty of the soundness of.

_ its manufactured product. ” 350 US at pp, 133-34.

It is true’ the Ryan cs case involved negligence in 1 per-

formance of the stevedoring labor, rather than furnish-

- ing defective equipment. But this Court* emphasized

° _

at the basis for recovery was not in tort, but in con-~

tract. And the Court made this significant statement:

“A like result occurs where a shipowner sues,

oe ui Stevedore Co..v. Pan-Atlatitic ss. ‘Corp., 350 US 124;

Weyerhaeuser S.S. Co. v. Nacirema Co., 355 US 563; Crumady .

v. The J. H. Fisser, 358 US 423; Waterman S.S. Corp. v. Dugan @

McNamara, 364 US 421; Reed v. The Yaka, 373 US 410.

a Sm 4

hip ainsi ol oui a: waliac at adasttncdhtars: 7 ae

gear that has caused injury or death to a long- |

shoreman Sone oie sieciab OF Wa mnpeytacet

‘on shipboard.” 350 US oe

: ‘hia statement exactiy fits the facts of the cave at 2

bar. be ¢ : a :

The cplaion alec states that “competency en allety

of stowage are inescapable elements of the service un-

\; dertaken.” 350 US at p.. 133. ‘Obviously, the stevedore

- cannot’ perform with “competency and safety” if it

Wumiahes. equipment that is not suitable for use on the

jo. Ris 3

>

€ “ERie siete pllocicine hove been Hated, in, she cab-

sequent cases of Weyerhaeuser S.S. Co. v. Nacirema Co.,

355 US 563 (where it was further emphasized that the

- gtevedore’s is based upon contractual warranty, -

: and principles of ce are not applicable); Crum-

ae ady v. J. H. Fisser, 358 US 423; Waterman S. S. Corp.

A. v. Dugan & McNamara, 364 US. 421.

In the Waterman case this Court states:

: ship and ,its owner are equally liable for

‘a breach by ihe contractor of the owners 10m. 2

delegable duty to ide a seaworthy vessel.

5 _ (Emphasis supplied)-364 US at 424-25.

“This language recognizes that a stevedore commits

Desks Gf tle Snteiaiky Wiest her subiicin the obi

‘- owner- to liability under the latter's absolute warranty

th behnneumaul

: Most i siichtcsk: ‘aah gatiak second: fa Mead. The ;

Vaha} “373 'US 410,.decided"May 27, 1963, ‘subsequent |

Xgk

\

. oe bgt a. :

"to the Court of Appeals decision of the case at bar, Tie-

~ reasoning of this Court in The Yaka makes clear that

an independent contracting stevedore f-liable'to in-

_ demnify the shipowner for damages paid a longshore-

Erato rs esi aa apm apmas

o furnished by the stevedore. oe SEs

In The Yaka, Ses ie epatlew pateanied iin obi

stevedoriag work, insttad of engaging an independent

contractor stevedore. Thus, the ship operator hired the —

longshoremen directly and was their “employer.” The:

question was whether the exclusive liability’ provisions.

of the Longshoremen and Harbor Worker's Act® re-

lieved the ship operator from his usual liability to long- .

. ¢Shoremen for breach of the warranty of seaworthiness.

In holding that it did not, the Court reasoned that if _

* the ship operator had hired an independent contracting

stevéllore, who had furnished the latently defective

equipment, the ‘ship operator would have been liable to

. the longshoreman, but could then’ have recovere@ full

_ indemnity against the contracting stevedore. ,

‘The opinion expressly: points out that the cat of

injury: to. the longshoreman was a latent defect in a

_, Pallet board furnished for'use in the stevedoring. work.

“The district judge found that at the time of

the injury petitioner was in the ship standing ona. -

= _ stack of rectangular, wooden pallets used in loading

| °° the, vessel and that the sole cause of the injury was-

'& latent detect in one of the planks of a pallet,

* which caused it to break.” (Emphasis’ supplied) .

: 373 US —, 10, L Ed 2d 448 at p. 490. as

°3DUSC§90S. . = eS

se

!

fad

“Wi ihagihanen seal Seneiich, Cole-Gonet eid citncty.

that if the stevedoring work had been perfarmed by. an

‘independent contractor, the longshoreman could have ‘

: rT oa nee Ween eve: 2e-

“Thus, there can be no doubt thet, ifthe pet-

"The opinion points ‘out there is no economic diffe”

sguinat tie thiputine Who acta as bis own sicvedore,

» and allowing recovery against the shipowner who hires

an independent contracting stevedore, and then allow- |

‘ing indemnity against the stevedore company. “In either

, ‘ope, nile Ryan, the burden ultimately fells on. the

f Se ee eee one Oe eee mete

sii ania oes tak icin thay. ave the veey:-

basis for decision. And. they exactly fit the case now

before ‘the Céurt. Respondent stevedore is an inde-

pendent contractor. It furnished latently defective equip-

Ppecaapurtwagomlal 4 spe lr pation

the injury.

ee as eed os ee ot

Appeals decision in the present case. Otherwise, it is

SE Deen Mee been Sons So She Court,

Be of Appeals. . & ‘

ie e be . °

3 , P yA e

eee

sie em Rene Bate.

* tie Sallis Tesla toalglity ic Gena to

"furnishing and bringing aboard ‘the vessel équipment

"ede: 4690 sultaide”for the ‘purpose ‘intended: he. :

Se ee

__ Proof of negligence.

«

* ‘This Court has yepeatedly stated that ‘the. cadens.

warranty is “comparable toa manufacturer’s warranty .

of the soundness of its manufactured product.” Ryan

Stevedore CB. v. Pan-Atlantic, 350 US 124, pp. -133-34;

_ Crumady v. J. H. Fisser, 358 US 423,°428-29; Water-

man'S.S. Corp. v. Dugan ® facNamaria, 364 US’ 421,

424; Atlantic & Gulf. Stevedores, Inc. v. Ellerman Lines ag

‘Led, 369 US 355, 359.

ee pepscrs cig weight of authority establishes a

-. that the. warranty is absolute, and does

not depend upon proof of negligence. a

Long ago, this Court in Kellogg Bridige Co. v. Hamil- .

: bor, 110 US 108 (1884) quoted with "approval from

Leopold v.-Vankirk, 27 Wis 152, as follows: aa ee

_. . “Phe general rule o Gow mith tenpiet hicteuplied

warranties is well settled, that when the manufac-

turer of an artifle sells it for a particular purpose,

‘the purchaser, making known to him at the time

the purpose for which he buys it, the seller thereby,

-, Warrants it fit, and p proper for such purpose and

/ free trom latent detects.” (Emphasis supplied) abe

_US 108, 115.

In Booth S.S. Co. v. Meier &-Octhat Co.2 262 F2d

- .

—s

fi . “ wos :

‘ <—- - .

% . ee : - >

‘ . . .

* .

. be |

4 es x s

3 ‘4 . “36

° . > e °

phe insplied-wareanty of suitability dot a per-

: alone met Ne nee Lover; end =m

: considered absolute, however,’ and ‘is: not

- fore this Court, the Court said? aes

veare the defendant ‘ould not discover the injury-

» causing defect.” 262 F2d 310 at-p. 314. |

"Compare also’ The Uniform Sales ‘Act, Sec 15(1): ~

eave te: Serer: See tee alive mange mal

lar purpose

soe'eseane ty conte of fo rt

- particular parposé,--indeed for its/own tse-in the steve-

. doring operations. The “shipowner relies upon the steve

dore as a specialist and expert.’ The stevedore derives

"profit from the transaction. Under these circumstances a

use.

? 5. Sincthahines ont Cinantweets Rev Ed § 1041, itis stated:

o.

“310 10 (2 Cig 1958), tivolving the same quertion now be

- supplier of chattels Suara suitability or ‘the intended ;

the equipment owes ‘the im- _

P

et opal not ieover the injury *

a

Bis.

“Analogy with the law of sales: justifies she for et is

"2 Williston on Contracts, Rev Ed 1936, § 982. &

sit vaneateaeadate “:

4

seit tt eee ovens ibe 3

+ on the re | or knowlédge i op

7 essen dain re property, the latter would be liable .

oe though in fact

se goods which he furnished.” -

In Booth SS. Co. ; Meer'® Oslha Co, eapen the ate

9 ee “ly has repeatedly been suggested that the por

: . bilities of suppliers should be ‘co-extensive With

those of the law of sales.” 262 F2d at p. 314.

"On this point we again refer-to this Court's state- _

ment in the Ryan case: ry 16 OS Yo :

longshoreman using it gre fo mae his —.

~ ment on shipboard.’? 350 US 130° : .

“If one who hires eqiipment to enother for a particu-

“lar use is held to’ be an absolute warranty that the .

equipment is suitable for’ the intended use; then a ‘for- ;

7 tiori is the stevedore in this cast, ‘who owned and fur-

_ wished the equipment, and at all times retained exclu-

mainsrnentanntonas mace aiuto: uth 25). (

To require the stevedore th warrant ‘Seaworthiness of

equipment, furnished by him: does not impose an un-!

~ reasonable burden, . on the steyedore. For, while ‘the:

. warranty. is absolute, the ‘standatd of séaworthiness is

only “reasonable. fitness” and “geasonably suitable”. for

. . the intended purpose. Mitchell v. Trawler Reger, 362

| “us 539, 550. ‘In words, the stevedore’s duty as to

. » equipment which | _ supplies is' no greater than the

shipowner’s duty as tonite vessel and: equipment.

3

°

seni auaston aarp wes ins 20.

place on the’shipowner the burden of proving that the

stevedore’ was. négligent, since all evidence es to" see,

history, inspections, and tests of the equipment, and.

oH we on the vee, exlsiey in pomeion of

——— Fes ere

~

Cour of Appeals Decisions

- Petitioner's right to indemnity. is supported by the

‘unanimous opinion of the Second Circuit in Booth $-S:

Co. Vv. ‘Meier @ Oclhat, 262 F2d 310 (2 Cir 1958), and

, ees yy

by the sound reasoning, of Judge Jertbers’s forceful dis-

: sent in the present case. 310 Fad at p. 488 (R: 54-64).

In the Booth case, aii independent ship repair eon

tractor, pursuant to oral agreement with the shjpowner, —

: dined 5 tniaiaglih dn coon sinngions ‘This included

the work of remdving tight-fitting cylinder liners. For

| use in the work, the contractor furnished a wire sfrap. |

It broke, causirig injury to , who was an em- —

ployee of the. contractor. ‘The\ strap broke because of

* Jatent defect, There wae no proot of negligence on the

patt of the contractor. -

a caeeercebial or

indemnity against we contractor for damages recovered

by the plaintiff. The Court of Appeals reversed, holding .

that under the contract there was an implied warranty

on the part of the contractor that the work would be

done safely, and that this warranty was breached by

the contractor supplying equipment not suitable, due

éo latent defect, for the purpose intended, anthem

| the contractor was not ne: ;

Sd

iW

é On :

e 5 ° ‘ . ey

ability; and. also the fairness of. placing the ultimate.risk

Berenice a agp aa gamst aig ae

| biy only two. judges: 310 2d 481 “(R. 43-54). The, opin-

- ion is based largely on semantics and a narrow interpre-

tation of the, words “workmanlike service,” which the

_ majority equates to. absence of ‘negligence. In this, the

"minimize that risk, rather than‘ upon the. shipowner,

‘who has no control over: tools. and equipment brought j

‘ a ‘ * e°

. ’ “De -:

Woe!

¢

“The! ‘well-reasoned opinion in Booth could well stand.

- as petitioner's ‘brief in the present’ case. It points out capt

that the contractor, asa suppliér of equipment for a pit

particular. purpose, owes’ an absolute warranty of suit-—

bé&t position to'minimize the risk.

“This Gouge off Agipeals decision in the ‘present caer is :

majority: overlooks the fact that cgntracting ‘stevedores

do not ‘merély furnish labor, but furnish all sorts of gear pers ee

and ‘equipment for their own .use. Scant attention if | :

given to this Court’s oft-repeated statements that “the

| stevedore’s warranty is comparable to tht rhanufac-.

turer’s warranty of .the soundness. of its product” and ~

that “competency and safety “of stowage are inescapable _

' elements of ‘the service. undertaken. ” The majority also

ignores. that the public’ policy, to ‘tinimize the risk of.

' injury. to shipboard workers, requires placing the ulti-

mate loss upon the party who is in the ‘best pésition to

‘aboard by independent contractors for their own use.

And finally, of course, the majority ‘did. not have the

benefit of this ‘Court's most ‘recent — in Reed V..

_ The Yaka; ‘discussed above. : So ,

’ Petitioner submits that Judge: Jertberg’s $ forceful dis- Pas

Gee,

a.

Qs

<—_

SS wee ty rg ee et. he .

1. i!

accident resulting from defects in the equipment which

he supplies. Judge Jertberg also points out the simple

visited a loss upon the shipowner.

“pete Petey tel ny

- Stevedore-furnished equipment ‘is. used in hazardous

_ work. Public policy requires placing the ultimate loss

a

mon the porty in the best postion to avoid or, seinen 3

ee acausubie

cannot prevent. Alaska SS. Co. Vv. Petterson, 347 US 396,

401. This assures monetary damages to the injured long-

a can be- —

coil i pone Ben be could ove he ayer

‘furnished by the independent contractor

NS

fy es a cakateus wie (rather

| han merely pay for his broken limb) the ultimate bur-

den should be placed upon the party best able to elimi-

pate the hazard,—namely the stevedoring contractor.

For it js the stevedore, who owns the équipmesit, sup-

SS

"sant contains ‘better ‘reasoning, It follows the Booth

ease, with émphasis upon the contracting stevedore’s

|. warranty being like that of a mannfacturer, and also

"the better position of the stevedore to avoid risks of

9%

decision. See 262 ‘F2d, pp. 314-15, The same principle >}

sill sah seijestiiga eee! ineas 0:25). The ‘stostdore

knows.‘the source and history of the equipment and

is expressed bya different panel’ of the, Second: Circuit

oe oe, United States Lines, 304 F2d 421: Se

Gg

vin! ons Gunglt & wt exprewed in Judge Jen:

berg’s dissenting opinion: Wie os

“Since the loss a a tas ak or.

the other, it is not unfair that such loss be ulti- ..

tely borne by the one best able to eliminate the

See the owner of the defective gear or

eq t who supplied it and whose use and con--

trol over it was eat ” "310 F2d 491 (R, 60-61).

. e- : : eae °90- . 5 =

He : 3 6 ; putea > :

e c .

Pot created the unseaworthiness, and who has imposed lia- '

Feimeas cr Equity Require Placing the Ultimate ss

Loss on the the Stevedore 7 ee |

: “St'is true that in,the present case,neither the steve- Seg |

dore nor the shipowner was guilty of- negligence. But soe

‘when the stevedore brought defective equipment aboard

: the vessel, it imposed a liability. on the innocent ship-

- Sumer The shipowner is lisble foF the latently unsea-

worthy condition of the equipment brought aboard and

at ae

_ ABS 396. - ;

| ‘wis cc ciate Me. The stipowner hes not

‘been at fault, The shipowner relies on the contractor

ahd-has no‘control over equipment-which the stevedbre

brings aboard. It is the contracting stevedore who has”

_ ° bility upon the shipovjper. .

: The. shipowner is held liable to the injured man

es at ciety

“of the humanitarian policy to; protect the men doing

“ seatnen’s work"? But the ‘contest between shipowner

“and stevedore companys between parties who are eco-

‘nomically equal. ‘As between the two, fairness and equity |

eas Setaiels kee tf Ga the viowwicen who te

e ‘has visited. the liability upon the shipowner. : |

?

°

ne

+2 Seas Shipping Co. v. Sieracki, 328 US 85: — v. Trawler .

28 . Racer, 362 US 539.

mS ~ : ‘a

a= ; » . : , S

ae ‘6 » j bg : ‘ 7

“Tis the Kiongping iawn, Gin juleniccn ot ton. Court:

"of “Appeals: should be reversed; and the case remanded

| with directions to enter — in favor of gees ws

Respectfully submitted, Pe

F - JErsKINE Woop,

_ Erskine B. Woop,

gees x : Counsel for Petitioner,

. - . 1310 Yeon Building,

: ZB - Portland 4, Oregon.

or ee ;

DATED August 20, 1963: . =

saa. i