Petition for a Writ of Certiorari — Usner v. Luckenbach Overseas Corp.

- Or Y { Ottice-Supreme Court, U.9,

FILED

SEP 30 1969

— |__JOHN F. DAVIS, eLERM

SUPREME COURT OF THE UNITED STA

OCTOBER TERM, 1969

NO. se ¥7

JOSEPH CHARLES USNER

Petitioner

vs.

LUCKENBACH OVERSEAS CORPORATION and

ISTHMIAN LINES, INC.

PETITION FOR WRIT OF CERTIORARI TO

REVIEW THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

LAW OFFICES H. ALVA BRUMFIELD

EVANGELINE M. VAVRICK

New Orleans, La. 70130

Attorneys for Petitioner

coemnngete no - aati

SUBJECT INDEX

PAGE

dessveeescovcensecssesscseoonossevecebeebeceoce 1

peeveesecsossenesesssnvosoescesesvecessecscnonseseoebbt 2

Questions Presented...........ccccccorescercescesceseseresees 2

Jurisprudence Involved............ssssssssesssssssesseses 2

Statement of Case....... 2

Reasons for Granting Writ

Proof of Service............++ bien o

RITE OR evicdisicnescisincsciiapseensenvinnccerseresces 13

Judgment of the U. S. Fifth Circuit

Court of Appeals

ABT TRIEIE I UD csvtnceskidivcrossccvencnennsesccenvesecnesees 14

Opinion of the U. S. Fifth Circuit

Court of Appeals

APPEND, RL” serererervonsnanesevivsncvenecnteseevecsecees 48

Opinion of the U. S. Fifth Circuit

Court of Appeals in Grigsby, et al,

vs. Coastal Marine Service of Texas,

Inc., et al; pages 35-45 Fifth Circuit-

Slip Opinion incorporated in the

ju ent of the instant case by reference.

0. 22451, May 1, 1969

FET UEVEIEIS - EP sasonssesorensosenccvesesocovccsveescoseeneene 30

Order of U. S. Fifth Circuit

Court of Appeals

Granting Interlocutory Appeal

PUB TEMIEIEEL UD cinsnssnsonsnvesssensenensstersessocccctncceneee 31

Order of the United States District

Court Eastern District of Louisiana

Section F

Granting Interlocutory Appeal

INDEX (Continued)

PAGE

fgg EEE 32

Order of the United States District

Court Eastern District of Louisiana

Section F

Amending Order Denying Defendants’

Motion ~~ 4 Summary Judgment

APE. 0S cecencccccstovcevccsonnvcccdasuléaiatslovscssees 33

Order of the United States District

Court Eastern District of Louisiana

Section F

Denying Defense Motion for Summary

Judgment

TABLE OF AUTHORITIES

PAGE

Alexander v. Bethlehem Steel Corporation

382 F 2d 961 (2d Cir., 1967)......ecseeeeeeereeees 6

Candiano v. Moore-McCormack Lines, Inc.

382 F 2d 961 (2d Cir., 1967)........seeseeeeereers 6

Cleary v. United States Lines Company

11 F 2d 1009 (2d Cir., 1969}. tdsbtvhcindiceileiinn j

Grigsby, et al v. Coastal Marine, et al

F 2d = (5th Cir., 1969) No. 22451... 10

Mascuilli v. United States 387 US 237,

87 S Ct. 1705, 18 L.Ed. 2d 743.........seeeeeee 4,9

Tim v. American President Lines, Ltd.

409 F. 2d 385 (9th Cir., 1969) 8

Venable v. A/S Det Forenede Dampskelesselskab

399 F. 2d 347 (4th Cir., 1968)

Waldron v. Moore-McCormack Lines, Inc.,

386 US 724, 87 S. Ct. 1410, 18 L. Ed 2d

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

NO.

LUCKENBACH OVERSEAS CORPORATION AND

ISTHMIAN LINES, INC.

v8.

JOSEPH CHARLES USNER

PETITION FOR WRIT OF CERTIORARI TO REVIEW

THE DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Charles Joseph Usner, the petitioner, prays that a writ of

certiorari issue to review the judgment 9 ithe United States

Court of Appeals for the Fifth Circuit, entered in the above

entitled case on July 3, 1969.

CITATIONS TO OPINIONS BELOW

The opinion of the Judge of the United States District

Court, Eastern District of Louisiana, Section F, denying

defendants’ motion for summary judgment, printed in

Appendix “G” is unreported.

The opinion of the Judge of the United States District

Court, Eastern District of Louisiana, Section F, amending the

order denying defendants’ motion for summary judgment,

printed in Appendix “F”’ is unreported.

The opinion of the United States Court of Appeals for the

2

fifth Circuit, printed in Appendix “B” is reported at ___F 2d

—_—*

The opinion of the United States Court of Appeals for the

Fifth Circuit in Grigsby, et al, vs. Coastal Marine Service of

Texas, Inc., et al, printed in Appendix “C” is reported ‘at a

=

No application for rehearing was filed.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to Title

98, Section 1254 (1) United States Code.

QUESTIONS PRESENTED

(1) Did Mascuilli vs. the United States 387 US 237 87 S.

Ct. 1705, abolish the defense of operational negligence in an

action based on unseaworthiness?

(2) Does operational negligence at the moment of injury

render the vessel unseaworthy?

(3) Has the Supreme Court rejected the distinction

between operational negligence and unseaworthiness?

JURISPRUDENCE INVOLVED

(1) Mascuilli vs. the United States, 387 US 237, 87 S. Ct.

1705.

STATEMENT OF THE CASE

The essential facts of the case are not in dispute and present

m incident of operational negligence at the moment of injury.

———ay

3

On September 28, 1964, T. Smith & Sons, Inc., an

independent contract stevedore was engaged in unloading a

cargo consisting of bundles of steel rods, approximately 50 feet

in length from a barge and loading the cargo into the No. 3

hatch of the S/S Edgar F. Luckenbach. The barge was moored

along side th~ vessel; the port and starboard booms at the No. 3

hatch were boing used to transfer the cargo from the barge to

the vessel. Slings secured to booms, were being used to

transport the bundles of rods from the barge into the vessel.

The stevedore’s employees were using the port winch and boom

at the No. 2 hatch to aid in the operation by “breaking out” the

bundles before they were lifted from the barge. There function

was simply to lift each bundle temporarily so that the slings

could be placed on both ends of the rods. Once the slings were

secured, the cargo gear at the No. 3 hatch was used to lift the

bundle out of the barge and into the vessel.

On the day the plaintiff was injured, he was working on the

barge, securing the slings attached to the fall of the “breakout

boom” around the cargo. The operation was conducted in this

manner and without incident both prior to and subsequent to

plaintiff's accident. At approximately 2:30 P.M., the winch

operator, operating the No. 2 port winch, lowered the breakout

slings just above plaintiff's head and beyond his reach. Plaintiff

motioned to the flagman, then standing on the deck of the

vessel, to direct the winch operator to lower the sling; the

flagman in turn signaled the winch operator. The winch

operator then lowered the breakout gear, and in so doing,

lowered it too quickly and too far. The gear struck the plaintiff,

caused him to fall into the barge and sustain serious and

permanent injuries.

On April 27, 1965, plaintiff filed a suit against the

defendant claiming benefits pursuant to the General Maritime

Law. On July 31, 1967, the defendants filed a motion for

-

4

summary judgment alleging that there was no genuine issue as

to any material facts and asserting that on the basis of discovery

depositions and affidavits all ships gear functioned properly and

that if the accident was caused by negligence, that negligence

could only have beenthe instantaneous negligence of the

longshoremen, which negligence did not render the vessel

unseaworthy.

The motion for summary judgment was opposed by

plaintiff, asserting that operational negligence as a defense had

been obliterated by the Supreme Court of the United States in

its per curiam in Mascuilli vs. the United States, 387 US 237, 87

$Ct 1705.

On August 11, 1967, defendants motion for summary

judgment was denied.

On August 28, 1967, the defendants filed a motion for

rehearing of the motion for summary judgment or in the

alternative to amend the order denying the motion for summary

judgment to permit an interlocutory appeal pursuant to Title 28

of the United States Code, Section 1292 (b).

On August 30, 1967, the District Judge of the United

States District Court for the Eastern District of Louisiana

entered an order amending the order of August 11, 1967, for

the reason that the motion for summary judgment involved a

controlling question of law, to wit, “ the validity of the

doctrine of operational negligence as a defense to which there

existed substantial ground for difference of opinion and for

which an immediate appeal would materially advance the

termination of the litigation.”

On October 12, 1967, the defendants were granted leave to

appeal from the interlocutory order by the United States Court

of Appeals for the Fifth Circuit. The matter was argued on May

24, 1968, and on July 3, 1969, the United States Court of

Appeals for the Fifth Circuit rendered a judgment remanding

the matter and directing the District Court to enter the

summary judgment.

REASONS FOR GRANTING WRIT

Has the United States Supreme Court rejected the

distinction between operational negligence and

unseaworthiness? To which of the three questions posed in

Mascuilli did the Supreme Court reply affirmatively?

An analysis of the cryptic per curiam in Mascuilli by four of

the Circuit Courts of Appeal, in light of the three questions

posed in petitioner's brief in Mascuilli and the prior

jurisprudence of the Supreme Court has led to the charting of

different and distinct courses. The cloud of Mascuilli has

resulted in divergent opinons, with the Second and Fourth

Circuits rejecting the doctrine of operational negligence as

defense to an action based on unseaworthiness, maintining that

said defense was rejected by the Supreme Court in Mascuilli,

while the Fifth and Ninth Circuits maintained the existence of

the defense.

Briefly stated the three issues presented in Mascuilli were:

(1) Did a prior unseaworthy condition come into play by

the tight line condition?

(2) Did the negligent handling of proper equipment by the

longshoremen create a dangerous condition rendering the vessel

unseaworthy? :

(3) Was the vessel unseaworthy because the longshoremen

were not equal in disposition and seamanship to the ordinary

men in the calling?

It is obvious from the opinions rendered by the Fifth and

Ninth Circuits that their analysis of Mascuilli led them to the

conclusion that the Supreme Court answered the first of the

three questions in the affirmative. It is likewise obvious that the

Second and Fourth Circuits subscribed to the theory that the

second question was answered in the affirmative.

SECOND CIRCUIT

REJECTS OPERATIONAL NEGLIGENCE AS DEFENSE

Candiano vs. Moore-McCormack Lines,Inc., 382 F 2d 961

at 962,

. . Grillea and a long line of other decisions

of this Court attempting to define where

operational negligence ends and

unseaworthiness begins would seem to be

no longer controlling in the light of

Mascuilli . . .

In Mascuilli, the question before the

Supreme Court on certiorari, to which the

Court gave an affirmative answer, was:

“Does dangerous condition caused by

stevedore’s negligent handling of proper

equipment render vessel unseaworthy and

its owner liable for resulting injuries?”

In Alexander vs. Bethlehem Steel Corporation,

382 F. 2d 963, decided on the same day as Candiano,

rrr

7

This case raises the same issue presented in

Candiano vs. Moore- McCormack Lines,

Inc., 2 Cir., 382 F 2d 961, also decided

today,to wit: Can a ship be rendered

unseaworthy solely on account of the

negligence of a longshoreman during a

loading operation? . . . in Candiano we

recognized that the Supreme Court rejected

the distinction between operational

negligence and unseaworthiness in Mascuilli

vs. United States, 387 US 237, 87 S Ct

1705, 18 L Ed 2d 743 (US May 22, 1967),

and thus an affirmative answer must be

given to the question posed above. (Pages

963-964) (Emphasis added)

The Second Circuit again stated its interpretation of

Mascuilli in Cleary vs. United States Lines Company 411 F 2d

1009,

It is now clear that a ship is rendered

unseaworthy by a longshoreman’s negligent

use of seaworthy equipment. Candiano vs.

Moore-McCormack Lines, Inc., 382 F 2d

961 (2 Cir. 1967).

FOURTH CIRCUIT

REJECTS OPERATIONAL NEGLIGENCE AS DEFENSE

Venable vs. A/S Det Forenede Dampskibsselskab, 399 F. 2d

2347. decided on June 12, 1968,

On this appeal, Venable raises an issue that

has proven troublesome to the federal

courts: To what extent can the

8

“operational negligence” alone of a

longshoreman or his fellow workers give

rise to an action for “unseaworthiness”?. . .

Recently in Mascuilli vs. United States, 387

US 237, 87 S Ct 1705, 18 L Ed 2d 743

(1967), the Court was squarely confronted

with the necessity of deciding whether a

vessel could be rendered unseaworthy

solely by the longshoremen’s negligent

handling of otherwise proper equipment (at

350)...

Mascuilli must be read as _ rejecting

operational negligence “‘as a factor in the

determination of liability” (at 351) . . .

It is now settled that the negligent misuse

of safe and sufficient equipment renders a

vessel unseaworthy. See Waldron vs.

Moore-McCormack Lines, Inc., 386 US

724, 87 S Ct 1410, 18 L Ed 2d 482 (1967).

Thus, operational negligence has been

subsumed under the doctrine of

unseaworthiness. (Emphasis added)

NINTH CIRCUIT

MAINTAINS OPERATIONAL NEGLIGENCE--A DEFENSE

Tim vs. American President Lines,Ltd., 409 F 2d 385 at

389, ,

A long line of cases in this Gircuit has

consistently rejeeted -any doctrine. of

“instant unseaworthiness.”” We have held

aT

9

that liability attaches if an act leaves the

vessel in an unsafe condition subsequently

resulting in injury but does not if the act

and resulting injury are simultaneous. . .

In reviewing Mascuilli the Court stated, at page 390,

This decision has: created. considerable

uncertainty in the lower Federal Courts

as to whether or not operational neghence .

constitutes unseaworthiness. (Emphasis

Added)

... » Fourth Circuit in Venable vs. A/S

Det Forenede Dampskibsselskab, 399 F 2d

347 (4th Cir. 1968), using similar reasoning

and relying upon Candiano concluded “that

Mascuilli must be read as_ rejecting

operational negligence as a factor in the

determination of liability.”

**However, we do not believe this to be the

meaning of Mascuilli. In the petition for

certiorari, Mascuilli did not state that there

was simply one question presented for

review but rather asserted that there were

At page 391:

Our examination and study of Mascuilli’s

brief in the Supreme Court . . . lead us to

conclude that the reversal was predicated

upon the Court’s answer to the first of the

above three questions.

—_

FIFTH CIRCUIT

MAINTAINS OPERATIONAL NEGLIGENCE--A DEFENSE

Grigsby vs. Coastal Marine Sth Circuit Court of Appeal No.

22451, (Decided May 1, 1969). Slip Opinion page 43,

. .n Antoine and Robichaux, this Court

rejected ede the notion of “instant

unseaworthiness”’,

With deference to our brothers in the

Fourth Circuit we decline to follow their

holding in Satchell and that written for the

panel by Judge Sobeloff in Venable, that

Mascuilli rejects out of hand that so-called

““operational negligence” defense to

thereby impose absolute liahjlity for the

resulting “instant unseaworthiness.”

_This means that we part company at the

‘same time with our distinguished brothers

of the Second Circuit if--and the if can be a

big one--the concurring opinion of Judge

Leonard P. Moore on rehearing in Candiano

and Alexander speaks for the Court in the

views which indicate that close analysis of

intracircuit undulations, aberrations and

enigmas, of his own and other (including

the Fifth) Circuits had led him to

substantial second thoughts about “instant

unseaworthiness.”

A number of beacons chart the course in

this direction. Foremost, perhaps, is the

unlikelihood of the Supreme Court

1l

undertaking to make such a sweeping

choice in the heavy seas of conflict by

such an 4:nilluminating pronouncement.

(Emphasis Added)

CONCLUSION

Because of the mystery of Mascuilli, the ambiguity of the

Supreme Court’s opinion, the conflicts among the Circuits and

the importance of the clarification of Mascuilli to the entire

maritime industry, it is respectfully submitted that a writ of

certiorari should issue.

Respectfully submitted,

LAW OFFICES H. ALVA BRUMM

328 Chartres Street

New Orleans, Louisiana 70130

524-5404

H. Alva Brumfield

and

By:

Evangeline Molero Vavrick

12

PROOF OF SERVICE >

I, H. Alva Brumfield, attorney for the petitioner and a

member of the bar of the Supreme Court of the United States,

hereby certify that on this day, I have served copies of the

foregoing application for writs on:

Mr. Maurie Yager

TERRIBERRY, RAULT, CARROLL,

YANCEY & FARRELL

2141 International Trade Mart Bldg.

2 Canal Street

New Orleans, Louisiana

and

Charles Kohlmeyer

Thomas Thorne

LEMLE,KELLEHER, KOHLMEYER,

MATTHEWS & SCHUMACHER

1800 NBC Building

New Orleans, Louisiana

By mailing a copy thereof, postage prepaid addressed to their

respective offices, this day of 1969.

H. Alva Brumfield

13

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

October Term, 1967

No. 25344

D. C. Docket No. CA 15531 “F”

LUCKENBACH OVERSEAS CORPORATION

AND ISTHMIAN LINES, INC.,

Appellants

versus

JOSEPH CHARLES USNER,

Appellee

Appeal from the United States Court for the

Eastern District of Louisiana

Before AINSWORTH and SIMPSON, Circuit Judges and

SINGLETON, District Judge.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Eastem

District of Louisiana, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby, reversed;

and that this cause be, and the same is hereby remanded to the

said District Court with directions to grant appellants’ motion

for summary judgment.

It is further ordered that appellee pay to llants, the

costs on appeal to be taxed by the Clerk of ths Court.

July 3, 1969

Issued as Mandate:

14

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 25344

LUCKENBACH OVERSEAS CORPORATION and

ISTHMIAN LINES, INC.,

Appellants,

JOSEPH CHARLES USNER,

. Appellee.

Appeal from the United States District Court for the -

Eastern District of Louisiana

(July 3, 1969)

Before AINSWORTH and SIMPSON, Circuit Judges,

and SINGLETON, District Judge.

SIMPSON, Circuit Judge: This is an interlocutory

appeal from an order denying appellants’ motion for

summary judgment on a claim based on negligence

and unseaworthiness by a longshoreman against ap-

pellants as owner and charterer of the S/S EDGAR

F. LUCKENBACH. The denial of the motion turned

up’n a controlling question of law as to which there

15

2 LUCKENBACH CORP., ETC. v. J. C. USNER

was substantial ground for difference of opinion, ie,

the validity of the doctrine of operational negligence

as a defense to an unseaworthiness action. The district

judge certified the question as one appropriate for in-

terlocutory appeal under Title 28, US.C., §1292(b).

Upon the district court’s certification, this Court al-

lowed the interlocutory appeal.

The sole issue is whether a ship is rendered unsea-

worthy as a result of the instantaneous negligence of

stevedores, this negligence resulting in the injury of

another stevedore, when all the equipment and appur-

tenances aboard the ship are admittedly in a seaworthy

condition.

The facts are undisputed. T. Smith & Son, Inc., an

independent contract stevedore, was employed to load

the appellants’ ship with cargo of steel rods approxi-

mately 50 feet in length. Slings, secured to booms,

were being used to carry bundles of rods from the pier

onto the vessel. The slings were lowered into place

by the booms, and were attached to the bundles of

rods. On the day the plaintiff was injured, the loading

operation had proceeded for some time, until on one

occasion when the plaintiff was preparing to affix the

sling to the rods, he noticed that the lowered sling was

just out of his reach. The plaintiff motioned to the

flagman to direct the winch operator to lower the

slings further. The winch operator then proceeded to

lower the slings, but he lowered them too far causing

them to strike the plaintiff, knocking him down onto

the barge, causing him injury. Neither before nor

after the accfdent was any trouble experienced with

"Rear aasG Ramm

16

LUCKENBACH CORP., ETC. v. J. C. USNER 3

the winch booms, slings, or any other equipment; nor

is there any contention that the winches were operated

in a systematically negligent manner that would con-

stitute unseaworthiness. The only way in which the ves-

sel could be said to be unseaworthy would be if this

one instance of operational negligence on the part of

the stevedore operating the winch could be said to con-

stitute unseaworthiness.

The uncertainty and confusion in this area of the

law has resulted from the Supreme Court’s per curiam

opinion in Mascuilli v. United States, 387 U.S. 237, de-

cided on May 22, 1967. In its per curiam opinion, the

Supreme Court granted certiorari and reversed the

judgment of the Third Circuit, citing only two cases:

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

(1959), and Mahnich v. Southern SS. Co., 321 US.

96 (1944).

The district court had held in Mascuilli, among other

things, that the stevedores had only been instantane-

ously negligent in handling seaworthy equipment;

therefore, the vessel could not be said to be unseawor-

thy. Mascuilli v. United States, D.C.E.D-Pa. 1965, 241

F.Supp. 354, aff'd per curiam, 358 F.2d 133.

The question, then, is whether Mascuilli abolished

the defense of operational negligence in an action for

unseaworthiness. If so, the plaintiff-appellee in the in-

stant case may recover, but if not, recovery is clearly

barred since there is no other evidence which would

support a finding of unseaworthiness.

iT

4 LUCKENBACH CORP., ETC. v. J. C. USNER

Prior to Mascuilli, this Court had held in Antoine and

Robichauz,' that operational negligence at the mom-

ent of injury did not render the vessel unseaworthy.

Mascuilli raised serious doubt as to the continuing vi-

tality of this holding. That doubt, at least for this

Circuit, has been dispelled. “Instant unseaworthiness”

resulting from “operational negligence” of the steve-

doring contractor is not a basis for recovery by an

injured longshoreman. The question is so resolved by

our recent decision in Grigsby, etc. v. Coastal Marine

Service of Texas, Inc., et al., 5 Cir. 1969, _.. F.2d —__

(No. 22451, May 1, 1969]. See Part VI, pages 35-45,

slip opinion.*

The district court, upon remand, is directed to grant

appellants’ motion for summary judgment.

REVERSED AND REMANDED.

tAntoine v. Lake Charles Stevedores, Inc., 5 Cir. 1967, 376 F.2d

443, cert. denied, 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146;

Robdichauxr v. Kerr McGee Oil Indus., Inc., 5 Cir. 1967, 376 F.2d

447.

aSee also Tim v. American President Lines, 9 Cir. 1969, _.— F.ad

—— (No. 22,395, March 18, 1969).

Adm. Office, US. Courts—Scofields’ Quality Printers, Inc., N. O., La

18

APPENDIX C

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 22451

HAZEL JEAN GRIGSBY, WIDOW OF JOHN D. GRIGSBY,

INDIVIDUALLY AND AS NATURAL TUTRIX OF HER

MINOR CHILDREN, JAVAN K. GRIGSBY AND JENNIFER

ANN GRIGSBY,

Appellee,

COASTAL MARINE SERVICE OF TEXAS, INC., MARY-

LAND CASUALTY COMPANY, GULF SALT CARRIERS,

INC., F. E. AIPLE d/b/a AIPLE TOWING COMPANY,

FIDELITY & CASUALTY COMPANY OF NEW YORK,

WELDERS SUPPLY COMPANY OF LAKE CHARLES,

LOUISIANA,

Appellants.

OLIN MATHIESON CHEMICAL CORPORATION,

Intervenor-Appellee.

Appeals from the United States District Court for the

Western District of Louisiana

(May 1, 1969)

Before BROWN, Chief Judge, BURGER® and

WISDOM, Circuit Judges

PART IV

PAGES - (35-45) SLIP OPINION

INCORPORATED BY REFERENCE

VL

UNSEAWORTHINESS OF THE BARGE

The Shipowner, Aiple, sharply attacks the finding of

the Trial Judge that the Barge was unseaworthy. As

discussed in Part V it also contends that even though

the Barge was unseaworthy, no right of recovery exists

under the Louisiana death statute for non-negligent

unseaworthiness.

y F.2d 319, 1960 AM.C. 1119; Maryland ex rel

Smith v. A/S Natella, D.Md., 1959, 176 F.Supp. 668, 1959 A.M.C.

2196; Vassallo v. Nederl-Amerik Stoomv Matts Holland, Tex.,

1961, 344 S.W.2d 421. See also Weed v. Bilbrey, Fla. Ct. App.,

1967, 201 So.2d 771, 774 n. 2, reversed, Fla., 1968, 215 So. 2d

36 GRIGSBY v. COASTAL--MARINE

The findings of the District Court on uns®aworthi-

ness may be briefly paraphrased. On the arrival of the

Barge at the Olin dock, she was listing noticeably to

starboard because of the unusual and abnormal ac-

cumulation of water in the No. 2 starboard wing tank.

This tank is designed to provide buoyancy to the Barge

and should, therefore, contain no water. Inspection re-

vealed that there was 2’3” of water in this tank. In

this condition the Barge was not reasonably fit to carry

the cargo of sodium nitrate which she had undertaken

to transport. Moreover, the hatch cover. wings to the

No. 2 starboard wing tank were corroded and sealed

tightly. The wing tank contained some carbon monox-

ide and was oxygen deficient to the extent that those

who entered lost consciousness. No inspection of the

tank had been had since December 9, 1961. On this, the

Court found the Barge to have been unseaworthy.

On this finding of unseaworthiness, it was, of course,

a perfectly natural and inescapable conclusion that

since this condition caused Grigsby to lose conscious-

ness and drown in the accumulation of water in the

No. 2 starboard wing tank, the unseaworthiness was a

proximate cause of his injuries and death.

This matter of unseaworthiness of the Barge poses

Somewhat unusual problems. In our analysis, how-

ever, we are aided if we dispose of positions at each

extreme which are simply untenable with respect to

the peculiar circumstances of this case. It is well to

reemphasize here that the duty of seaworthiness a-

rises because Grigsby had the vicarious status of a

Seaman — either as one engaged in life Salvage or, as a

21

GRIGSBY v. COASTAL MARINE 37

corollary, one engaged in the Good Samaritan rescue

of Sonnier and Morgan, each of whom admittedly were

doing repair work, the traditional work of seamen to

thus become vicarious seamen themselves. The point of

significance is, therefore, that it was the presence of

the water in the wing tank and the consequent list to

the Barge which was the sole occasion for the three

of them to be aboard the Barge at the time and under

the circumstances presented. We may assume that

with this list the Barge was unseaworthy vis a vis the

cargo and the shipper of cargo. But there is no war-

ranty that the vessel is seaworthy with respect to the

unseaworthy condition which is directiy responsible for

bringing aboard the persons claiming the benefit of the

warranty. We agree with the Second Circuit in Mc-

Daniel v. The M/S Lisholt, 2 Cir., 1960, 282 F.2d 816,

1961 A.M.C. 25:

“We need pause only briefly with libelant’s

assertion that he was entitled to a warranty of

seaworthiness. The short answer is that the

contention was disposed of by this Court's

prior decision, since we do not read the Su-

preme Court’s opinion as disapproving our rul-

ing on this issue. As we there stated, ‘There

_can be no duty to furnish a seaworthy ship to

a fireman who was on the vessel knowing it

to be unseaworthy, and was on board because

of its unseaworthiness.’ 2 Cir., 257 F.2d 538,

540. See also West v. United States, 361 U.S.

118, 80 S.Ct. 189, 4 L.Ed.2d 161; Filipek v.

Moore-McCormack Lines, Inc., 2 Cir., 258 F.2d

734, certiorari denied 359 U.S. 927, 79 S.Ct.

38 GRIGSBY v. COASTAL MARINE

605, 3 L.Ed.2d 629; Bruszewski v. Isthmian

SS. Co., 3 Cir., 163 F.2d 720, certiorari de-

nied 333 U.S. 828, 68 S.Ct. 451, 92 L.Ed. 1113.”

The same may be said, we think, with respect to an-

other extreme — the oxygen deficiency of the tank (or

the presence of carbon monoxide gas presumably re-

sulting also from the natural process of oxidation). A

wing tank is to supply buoyancy. It was supplying

buoyancy although it also produced a list. The wing

tank is not present or designed for the purpose of

safely carrying men. A wing tank is expected to be

kept closed. As a compartment intended to be tightly

closed and sealed for long periods of time, it is ex-

pected that there will likely be an oxygem deficiency

which itself makes it dangerous for tank entry unless

precautions are taken.

Consequently, if confined precisely to the particular

reasons given by the Trial Court we would have much

doubt that they would sustain the holding of unsea-

worthiness.

On the other hand, the Shipowner’s effort to press

the literalism of West v. United States, 1959, 361 U.S.

118, 80 S.Ct. 189, 4 L.Ed.2d 161, 1960 AMLC. 15, must

fail here just as it did recently in Lusich v. Bloomfield

SS. Co., 5 Cir., 1966, 355 F.2d 770, 1966 AM.C, 191. It

would, to be sure, be a nice day for shipowners if

under a bareboat charter of a manned vessel or a

charter of almost any kind of an unmanned vessel, the

owner could absolve itself of all of the traditional ob-

ligations of furnishing a seaworthy vessel merely be-

23 |

GRIGSBY v. COASTAL MARINE 39

cause the owner was not in the physical possession

and control of the craft and, on the contrary, the pos-

session and control was in the hands of the charterer,

Obviously, of course, the absence of possession and

control may well insulate the shipowner from a liabili-

ty in personam in the absence of conduct which some

how implicates the remote owner in the deficiency,#

But on principles of in rem liability, or concepts akin

to it, there seems to be no more reason for the physical

absence of an owner’s representative universally to

insulate the vessel from accountability for personal

injuries occasioned by unseaworthiness than there is

to absolve the vessel from in rem liability for, say,

other types of maritime torts in:luding collision,

even though the vessel, on this hypothesis, is wholly in

the contro] of a demise charterer and, worse, being

conned by a compulsory pilot.**

Thus, in West, had the vessel been in the regular

course of operation under a demise charter from the

United States (her owner), to a private company as

bareboat charterer, and had the claimant sustained

28There are, of course, circumstances in which in rem liability will

also be lacking for want of requisite control. See Moye v. Sioux

City & New Orleans Barge Lines, Inc., 5 Cir., 1968, F.2d

—— [No. 23018, Oct. 9, 1968].

26Griffin, Collision, §244, at 553 (1949):

“Thus a vessel is liable in rem for collision, although she

is under demise charter and the master and crew are therefore

the charterer’s servants * * *.”; 1 Benedict, Admiralty, §132, at

362-63 nn. 63, 64 (1940); Homer Ramsdell Transp. Co. v. Com-

pagnie Generale Transatlantique, 1900, 182 U.S. 406, 21 S.Ct

831, 45 L.Ed. 1155; The China, 1868, 74 U.S. (7 Wall.) 53, 19

L.Ed. 67. Cf. Reed v. The Yaka, 1963, 373 U.S. 410, __—- S.Ct.

—, ———— L.Ed.2d ——.,, 1963 A.M.C. 1373.

2k

40 GRIGSBY v. COASTAL MARINE

his injuries from a condition other than that being re-

paired, we have no doubt that liability at least on

principles in rem would have existed and would have

been enforceable against the government under the

Public Vessels Act, 46 U.S.C.A. §§781-90. We, there-

fore, decline, with deference to pursue the literalism of

the Fourth Circuit in Union Carbide Corp. v. Goette,

4Cir., 1960, 278 F.2d 319, 1960 A.M.C. 1119, cert. denied,

364 U.S. 826, 81 S.Ct. 64, 5 L.Ed2d 55.27 The princi-

ple of West does not therefore extricate the Shipowner

as it hopefully urges.

As the facts which give rise to this inference are

virtually without dispute and rest almost altogether. on

other fact findirigs having the ‘buoyancy of F.R.Civ. P.

52(a), we think it appropriate for us to affirm the find-

vessei undergoing and the presence of the injured

Person aboard at the time of the occurrence. “There is no

doubt that the Barge was unseaworthy; this was the rea-

son for its being at the Avondale wet dock, that is, for the re-

moval of the condition which caused it to become unseaworthy

—the defective hatch cover which was not fully closed. It

would be manifestly unfair to penalize a shipowner for per-

forming his duty and taking the necessary steps to make his

ship seaworthy * * * The primary reason for libelant being

aboard the Barge was the performance of his duties to Avon-

dale * * *.”

25

GRIGSBY v. COASTAL MARINE 41

at Olin’s dock, or at the time Coastal’s men started to

perform their engagement. Here the unseaworthiness

is confined narrowly to that point of time commenc-

ing with Sonnier’s undertaking to go into the wing

tank. The tank entry was done with the full knowledge

of Coastal’s representatives. Indeed, it was done to

effectuate Coastal’s work — the discharge by portable

pump of the water accumulated in the wing tank. Ob-

viously the tank was not safe for men at that time, ei-

ther actually or under applicable safety regulations

(see notes 52, 53, infra). Even though the tank was not

meant to be safe for persons, once it became neces-

sary to enter it, the service contractor had the obli-

gation not to perform its work in a way which would

make the vessel unseaworthy, i.e., unfit for men. Here

a man was about to enter the wing tank. The tank

was then not reasonably fit for the presence of men. It

was not reasonably fit for the presence of men be-

cause the contractor had failed and continued to fail to

take those steps which were required to make it rea-

sonably safe — i.e., test, ventilate or equip workers

with the safety appliances needed (see note 53 infra).

To this extent, it was the action of the contractor

which created the unseaworthy condition. But at least

since Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396,

73 S.Ct. 601, 96 L.Ed. 499, 1954 A.M.C. 860, this has been

enough.?*

38See Gutierrez v. Waterman S.S. Co., 1963, 373 U.S. 206, 83 S.Ct.

1185, 10 L.Ed.2d 297, 1963 A.M.C. 1649; Weyerhaeuser S.S. Co.

v. Nacirema Co., 1958, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d

491, 1957 A.M.C. 645. See also, Italia Societa v. Oregon Steve-

doring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732,

1964 A.M.C. 1075; Ferrante v. Swedish American Lines, 3 Cir

ae or :

26

42 GRIGSBY v. COASTA¥fARINE

But so typical of this Tinker-to-Evers-to-Chance*®

struggle there is an instinctive reflex by each side.

Thus, the Shipowner, conceding with no enthusiasm

that an independent contractor can be the instrument

by which the vessel becomes unseaworthy to thereby

launch unlimited liability against the ship (and hence

her owner) asserts that there must be a time, sequen-

tial limitation, otherwise the contractor’s conduct

creates “instant unseaworthiness” as to which our

subsequent Antoine and Robichaur*° cases deny ves-

sel liability. With like simplicity, the argument of the

claimants merely anticipated in point of time that

which can now be characterized in terms of Mascuil-

lit even though it has come out since the decision be-

low. The Mascuilli theory is also one of extravagantly

simple absolutes. It is the direct one that Mascuilli

1964, 331 F.2d 571, 1964 AMC. 2268, cert. denied, 379 U.S.

801, 85 S.Ct. 10, 13 L.Ed.2d 20; Thompson v. Calmar SS. Corp.,

3 Cu.., 1964, 331 F.2d 657, 1964 A-M.C. 2240, cert. denied, 379

U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184; Blassingill v. Waterman

SS. Corp., 9 Cir., 1964, 336 F.2d 367, 1964 AMC. 1932: Bue,

Admiralty Law in the Fifth Circuit—A for

Practitioners: I, 4 Hous. L. Rev. 350, 397-99 (1966).

seUnited States v. Seckinger, 5 Cir., 1969, __—- F 24 ——__, -—___-

(No. 23432, Feb. 28, 1969, slip opinion at 14).

4eAntoine v. Lake Charles Stevedores, Inc., 5 Cir., 1967, 376 F.2d

443, cert. denied, 389 U.S. 869, 88 S.Ct. 145, 19 LEd2d 146;

Robichaux v. Kerr McGee Oil Indus., Inc., 5 Cir., 1967, 376

F.2d 447. To these should be added Taylor v. SS. Helen Lykes,

5 Cir., 1968, __— F.2d ——— [No. 25101, Oct 31, 1968] af-

firming E.D. La., 1967, 268 F. Supp. 932, involving a Yaka

seaman-longshoreman’s action against his employer's vessel.

See also Note, Operational Negligence of Longshoreman Oc-

curring at Moment of Injury to Co-Worker Does Not Render

Vessel Lnseawerthy. = Hous. L. Rev. 371 (1967). Cf. Mitchell v.

‘Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d

941, 1960 A.M.C. 1503.

41Mascuilli v. United States, 1967, 387 U.S. 237, 87 S.Ct. 1705, 18

L.Ed.2d 743, 1967 A.M.C. 1702.

27

GRIGSBY v. COASTAL MARINE 43

now means to affirm that “instant unseaworthiness”

resulting from the “operational negligence” of the con-

tractor at the very moment of injury subjects the ship

to the absolute unseaworthiness liability.

We think neither of these extremes is warranted

here. We agree, of course, that in Antoine and Robi-

chaux, this Court rejected categorically the notion of

“instant unseaworthiness”. But that is of no help to

the Shipowner here since the contractor’s negligence

extended over an appreciable period of time. On the

other hand, the claimants’ efforts to circumvent al-

together a time factor on the basis of Mascuilli are

equally wanting.**

With deference to our brothers in the Fourth Circuit

we decline to follow their holding in Satchell** and

that written for the panel by Judge Sobeloff in Ven-

able** that Mascuilli rejects out of hand that so-

called “operational negligence” defense to thereby im-

pose absolute liability for the resulting “instant unsea-

worthiness’’.*®

42This question is presented ditectly in several cases, perhaps ob-

liquely in some, now pending before other panels of this Court.

See Luckenbach Overseas Corp. v. Usner, No. 25344; Wilson

v. Societa Italiana de Armamento, No. 25890; Duncan v. Trans-

eastern Shipping Corp., No. 28672; Patterson v. Humble Oil &

Refining Co., No. 26365.

43Satchell v. Svenska Ostasiatiska Kompaniet, 4 Cir., 1967, 385

F.2d 76.

‘a4Venable v. A/S Det Forenede Dampskibsselskab, 4 Cir., 1968, 399

ing en banc, 4 Cir., 1968, 399 F.2d 355, may be the enigma

wrapped in mystery. Although the order as published does

not so reflect, direct communication with the Clerk of that

Court confirms that the order was signed by the full Court.

“ GRIGSBY v. COASTAL MARINE

This means that we part company at the same time

with our distinguished brothers of the Second Circuit

if — and the if can be a big one — the concurring opin-

ion of Judge Leonard P. Moore on rehearing in Can-

diano and Alexander** speaks for the Court in the

views which indicate that close analysis of intra-

‘circuit undulations, aberrations and enigmas, of his

own and other (including the Fifth) Circuits had led

him to substantial second thoughts about “instant un-

seaworthiness” and Mascuilli.

A number of beacons chart the course in this direc-

tion. Foremost, perhaps, is the unlikelihood of the Su-

preme Court undertaking to make such a sweeping

choice in the heavy seas of conflict by such an unil-

luminating pronouncement. Next, examining the only

cases cited — Mahnich*”? and Crumady** — likewise

reveals no intrinsic evidence of any such sweeping

purpose. As for Mahnich, it was an early forerunner

of what few could then expect would shortly be let

loose by Sieracki*® that merely held that it was the

ship or her equipment being used, not the negligence

of crew members in selecting the faulty from the good,

which determined unseaworthiness. As for Crumady,

its citation was an indication of precision, not generali-

“eCandiano v. Moore-McCormack Lines, Inc., 2 Cir., 1967, 386

F.2d 444, on petition for rehearing of 382 F.2d 961, 1967 AM.C.

2312; Alexander v. Bethlehem Steel Corp., 2 Cir., 1967, 382

F.2d 963, 1967 A.M.C. 2324.

4™Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 64 S.Ct. 96, 88

LEd. 561, 1944 AMC. 1.

“eCrumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79

S.Ct. 445, 3 L.Ed.2d 413, 1959 A.M.C. 580.

4*Seas Shipping Co. v. Sieracki, 1946, 328 US. (8, 66 S.Ct. 872, 90

LEd 1099, 1946 AM.C. 698. —

— gy

GRIGSBY v. COASTAL MARINE 45

' gation since in both Crumady and Mascuilli the injury

resulted from the failure of the safety circuit breaker

devices to work properly either from deficiencies or

prior improper setting.

Of course nothing we say about what the Supreme

Court said or thought it said can add much to what

was said or what it will say it said. How we have

divined it may be rejected by an expansive analysis

of why the cryptic deliverance of Mascuilli was the

message from Delphi in the words of perhaps latter-

day spokesmen, that under the law “the very finding

of operational negligence is a simultaneous finding of

unseaworthiness — [since the] — alchemy is instan-

taneous.’’*°

The result is that we adhere to Antoine and Robi.

chauzx, but faithful to them we find the ample facts

on which to predicate unseaworthiness resulting from

the negligence by the contractor in the perform-

ance of its work.

The decree against the Shipowner was therefore

correct.

30

=

APPENDIX D

ORDER GRANTING INTERLOCUTORY APPEAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Mist, No. 856

LUCKENBACH OVERSEAS CORPORATION and

__ ISTHMIAN LINES, INC.,

On for Leave to from

Aplcatin fo Leo Ape an

Before BROWN, Chief Judge, COLEMAN aad SIMPSON,

Cireuit Judges.

BY THE COURT:

Leave to appeal from the interlocutory order ef the United

States District Court for the Eastern District ef Louisiana,

entered on 11, 1967, in this cause be, and the same is

bereby GRANTED.

(ORIGINAL FILED - October 12, 1967)

ee,

31

APPENDIX E

ORDER AMENDING ORDER OF AUGUST 11, 1967

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Joseph Charles Usner CIVIL ACTION

: No. 15531

ae STEAMSHIP CO., INC., SECTION F

AL

In view of the fact that the order rendered herein on

August 11, 1967 denying the motion of Luckenbach Asawa

and Isthmian Lines, Inc. for summary

i a controlling question of law, to wit, the valdity of the

doctrine of operational negligence as a defense,

IT IS ORDERED that the order rendered herein on

11, aot ne ck, tk van al On dees i

question © to wit, validity of the doctrine o

negligence as « defense in this cause and as to which

ond eee Oe 2 ease green’ Ss Serene gy opeaien

» an imme appeal may materi ya

the ultimate termination of the litigation.

New Orleans, Louisiana, August 30, 1967.

LANSING L. MITCHELL

STATES DISTRICT JUDGE

—

°. \~

APPENDIX F

ORDER GRANTING MOTION OF LUCKENBACH and

STHMIAN LINES FOR AMENDED ORDER OF AUGUST 11, 1967

|

i

MINUTE ENTRY:

AUGUST 30, 1967

MITCHELL, J.

JOSEPH CHARLES USNER SECTION “F”

versus NO. [5531

WCKENBACH STEAMSHIP COMPANY, CIVIL ACTION

INC, et

IT IS ORDERED BY THE COURT that motion of Luckenbach

Corporation and Isthmian Lines, Inc., Defendants, for re-

hearing or, in the alternative, to amend order, be, and the same is

way, GRANTED, insofar as the Order of August 11, 1967 be

33 4

APPENDIX G «

ORDER DENYING MOTION FOR SUMMARY :

JUDGMENT ~

m:

MINUTE ENTRY a

MITCHELL, J.

AUGUST 11, 1967

JOSEPH CHARLES USNER CIVIL ACTION...

VERSUS NO. 15531 |

LUCKENBACH STEAMSHIP CO..,

INC., ET AL SECTION F

ie

This cause came on for hearing on another day on a

of the defendant, Luckenbach Overseas Corporation, Peshew

designated Luckenbach Steamship Co., Inc., and Isthmian Lines,

Inc. for a summary judgment in their favor, dismissing the come

plaint. against them. S

PRESENT:

Evangeline M. Vavrick

Attorney for plaintiff

M. D. Yager, Esq.

Attorney for defendants

IT IS ORDERED that the motion of the defendants, :

Luckenbach Overseas Corporation and Isthmian Lines, Inc., i

denied. a