Opposition Brief — Usner v. Luckenbach Overseas Corp.

- Introduction

INDEX

Page

Opinions below

Questions Presented

Argument

Conclusion

TABLE OF CASES

Alaska S. S. Co. v. Petterson

(1954) 347 U.S. 396, 74 S.Ct. 601

Alexander v. Bethelem Steel Corp.

(2nd Cir. 1967) 382 F. 2d 963 wissen

Antoine v. Lake Charles Stevedores

(5th Cir. 1967) 376 F. 2d 443 an

Arista Cia. de Vapores S.A. v. Howard Terminal

(9th Cir. 1967) 372 F. 2d 152 5

Benton v. United States Lines, Inc.

(D.Md. 1968) 297 F. Supp. 87, aff’d. 408

F. 2d 378 (4th Cir. 1969) 14

Calbeck v. Travelers Insurance Co.,

(1962) 370 U.S. 114, 82 S.Ct. 1196 16

Candiano v. Moore-McCormack Lines, Inc.

(2nd Cir. 1967) 382 F. 2d 961 3, 12, 16

Cleary v. United States Lines Co.

(2nd Cir. 1969) 411 F. 2d 1009 13

Crumady v. The Joachim Hendrik Fisser

(1959) 358 U.S. 423, 79 S. Ct. 445 7

Duncan v. Transeastern Shipping Corp.

(5th Cir. 1969) 413 F. 2d 1023 15

Grigsby v. Coastal Marine Service of Texas, Inc.

(5th Cir. 1969) 412 F. 2d 1011 1

Grillea v. United States

(2nd Cir. 1956) 232 F. 2d 919 11

II

TABLE OF CASES (Continued)

Page

Grimes v. Raymond Concrete Pile Co.

(1958) 356 U.S. 252, 78 S.Ct. 687 16

Italia Societa per Azioni di Navigazione v. Oregon

Stevedoring Co. (1964) 376 U.S. 315, 84 S.Ct. 748 _ 16

Luckenbach Overseas Corporation v. Usner

(5th Cir. 1969) 413 F. 2d 984 3

Mascuilli v. United States

(1967) 387 U.S. 237, 87 S. Ct. 1705 - 2

Massa v. C. A. Venezuelan Navigacion

(2nd Cir. 1961) 332 F. 2d 779 5

Mitchell v. Trawler Racer, Inc.

(1967) 362 U. S. 539, 80 S. Ct. 926 8

Morales v. City of Galveston

(5th Cir.) 275 F. 2d 191, vacated and remanded,

364 U. S. 295, 81 S. Ct. 107 (1960) ; on remand,

291 F. 2d 97, aff'd. 370 U.S. 165, 82 S. Ct.

1226 (1962) 7

Reed v. s.s. YAKA

(1963) 373 U.S. 410, 83 S. Ct. 1849 4

Ryan Stevedoring v. Pan Atlantic S.S. Corp.

(1956) 350 U.S. 124, 76 S. Ct. 232 4

Seas Shipping Co. v. Sieracki

(1946) 328 U.S. 85, 66 S. Ct. 872 4,5

Tarabocchia v. Zim Israel Navigation Co., Ltd.

(2nd Cir. 1969) 417 F. 2d 476 2, 10, 13, 14

III

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—

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Lem BEY OR ET

—_———— anne

TABLE OF CASES (Continued)

Tim vy. American President Lines, Ltd.

(9th Cir. 1969) 409 F. 2d 384

Venable v. A/S Det Forende Dampskibsselskab

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

Waldron v. Moore-McCormack Lines, Inc.

(1967) 386 U. S. 724, 87 S. Ct. 1410 Se

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

NO. 675

JOSEPH CHARLES USNER

VS.

LUCKENBACH OVERSEAS CORPORATION AND

ISTHMIAN LINES, INC.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

This response to the application for the writ of certi-

orari is made pursuant to the direction of the Court. For

the reasons hereinafter set forth, respondent submits that

the writ should be refused, but earnestly and with re-

spect urges, if the Court is of the opinion that the posi-

tion of petitioner has merit, that such opinion be finalized

only after the writ has been granted and oral argument

has been heard.

Counsel is advised that the principle of law here in-

volved is of transcendent importance to the maritime

industry and that amici curiae briefs may be expected

2

from several sources. The “cryptic deliverance’ of the

Court in Mascuwill#? has undoubtedly led to confusion in

the lower courts,’ and another per curiam reversal con-

temporaneously with the granting of the writ will serve

only to compound the confusion now existing in the minds

of the judges of the various Districts and Circuits.

Petitioner here seeks a change in the rules of the game;

and although it is our submission that no change should

be made, with the utmost respect we urge that if Your

Honors decide the case in favor of the position taken

by petitioner, your decision be clear-cut, so that the indus-

try will know where it stands.

OPINIONS BELOW

Since the filing of the application, the opinion below

has been reported officially in 413 F. 2d. 984. Likewise,

the opinion in Grigsby et al v. Coastal Marine Service of

Texas, Inc., et al is reported officially in 412 F. 2d. 1011.

QUESTIONS PRESENTED

A single question is presented for review on the record

herein. That question is posed by the Court below as fol-

lows:

“The sole issue is whether a ship is rendered

unseaworthy as a result of the instantaneous

negligence of stevedores, this negligence result-

ing in the injury of another stevedore, when

all the equipment and appurtenances aboard the

1 Brown, J. in Grigsby v. Coastal Marine Service of Texas, Inc. 412

F.2d 1011, 1033 (5th Cir. 1969); see also Moore, J. in Tarabocchia V.

Zim Israel Navigation Co., Ltd. 417 F. 2d 476, 477 (2nd Cir. 1969).

2 Mascuilli v. United States, 387 U. S. 237, 87 S. Ct. 1705 (1967).

3 See pp. 11-15, infra.

3

ship are admittedly in a seaworthy condition.”*

The foregoing question, we submit, is considerably more

narrow than that presented as Question (2) in the peti-

tion. Questions (1) and (3), purported raised below, are

subsidiary thereto and do not necessarily follow there-

from.

ARGUMENT

As the Court of Appeals pointed out in the course of

its opinion, the facts in this case are undisputed® and

generally are set forth properly in the application for

the writ. Although it may be possible to reconcile the

decisions of the various Circuits on their narrow facts,

it is submitted that counsel would be less than frank if

it were argued that there is unanimity among the Cir-

cuits in the general area of negligence and unseaworthi-

ness. Candiano® and Alexander’ in the Second Circuit and

possibly Venable* in the Fourth Circuit cannot be recon-

ciled in theory with Tim® in the Ninth Circuit and the

Fifth Circuit opinions, including the opinion below in the

instant case.

The conflict between the Circuits, however, is not in

the original thought processes of the Judges in every day

contact with these types of cases and who decide them in

the courts of first instance, but in the appreciation of

the lower courts of the meaning of the decision cf Your

* Opinion below, 413 F. 2d 984, 985.

5The case was tried on a stipulation of fact which is summarized in

the opinion below, 413 F. 2d 984, 985. It is believed that the summary

is accurate in all respects.

6Candiano v. Moore-McCormack Lines, Inc. 382 F. 2d 961 rehearing

den. 386 F. 24 444 (2nd Cir. 1967).

T Alexander v. Bethlehem Steel Corp., 382 F. 2d 963 (2nd Cir. 1967).

ae v. A/S Det Forenede Dampskibsselskab, 399 F. 2d 347 (4th

ir. 1968).

*Tim v. American President Lines, Ltd., 409 F. 2d 385 (9th Cir. 1969).

a

a

Honors in Mascuilli. The stage for that decision was set

by a leng series of cases wherein the courts generally,

and this Court in particular, accorded to the Longshore-

men’s and Harbor Workers’ Compensation Act an ex-

tremely liberal interpretaticn in favor of an injured mari-

time worker. The language of that Act, in the context of

this case, has not been amended by the Congress since

the date of its original enactment, although its penumbra

of case law has changed so materially as to make the

entire area unrecognizable. It had been thought that

Sieracki,” Ryan,’ and Yaka" completed the circle which

seemingly had an outer perimeter bounded only by the

ingenuity of plaintiffs’ ccunsel. Yet all of the foregoing

has taken place in the face of the provision of the law

describing the statutory remedy of a longshoreman against

his employer as “exclusive”.

Although counsel knows of no accurate source of sta-

tistics which are available to show the number of Fed-

erally compensable injuries which result in a suit against

the shipowner wherein the stevedore-employer in fact foots

the bill, counsel’s personal experience, at least in the

New Orleans area from which this case arises, is that the

“circular liability” spawned by Ryan and Yaka comes to

rest on the stevedore contractor in the vast majority of

such cases. It is believed that the heavy dockets of the

District Courts in the Ports of the country are conclusive

proof of the extraordinary increase of litigation in this

field directly attributable to that “circular liability”,

which, we submit, was never legislated by Congress and

10 Seas Shipping Co. v. Sieracki, 328 U. S. 85, 66 S. Ct. 872 (1946).

11 Ryan Stevedoring Co. v. Pan Atlantic SS Corp., 350 U. S. 124, 76

S. Ct.232 (1956).

12 Reed v. SS Yaka, 373 U.S. 410, 83 S. Ct. 1349 (1963).

5

which foists liability for the “bonus recovery” of the

injured longshoreman on his employer in the face of a

schedule of benefits for specific injuries which has been

reviewed on at least two occasions by the Congress and

materially increased on each review."

To compound the unfortunate situation in which the

stevedore contractor finds itself today, the rule now seems

to be that in addition to making good any judgment which

might be rendered against a shipcwner by virtue of the

application of the doctrine that the stevedore has failed

to carry out his contract in a workmanlike fashion or

that the conduct of the stevedore “brought into play” the

pre-existing unseaworthiness of the ship, the stevedore

contractor must also pay the expenses and attorney’s fees

of the shipowner who is proceeded against by an injured

longshoreman in a baseless suit which the shipowner is

successful in defending.’

It may be that Your Honors will say that the rules

referred to are now so firmly imbedded in our jurisprud-

ence as to preclude further argument on their propriety,

but it is submitted that the instant case presents an addi-

tional liability theory far over and beyond any heretofore

approved by this Court. We respectfully urge that the door

of open end liability on the shipowner/stevedore not be

closed so as to eliminate the single remaining ground

13 Cf. Frankfurter, J., dissenting in Sieracki, supra, n. 10.

14The original 1927 Act providing for a maximum weekly payment

for death of $52.50 was amended in 1956 to increase the maximum to

$81 per week and was again amended in 1961 to increase the rate to

the present $105 maximum. The disability compensation, originally fixed

at $35 per week was raised to $54 in 1956 and to $70 in 1961. Other

liberalizations in benefits were consistent with the foregoing. The

benefits of the Federal Act are far greater than those accorded a

workman under any state law.

15Cf. Massa v. C. A. Venezuelan Navigacion, 332 F. 2d 779 (2nd Cir.

1964; Arista Cia. De Vapores, S. A. v. Howard Terminal, 372 F. 2d

152 (9th Ci.. 1967).

6

upon which a personal injury claim of a longshoreman

may be defended, thereby requiring the shipowner/steve-

dore to do exactly what this Court and many other courts

have said need not be done: a shipowner has never been

required to furnish an accident-free ship and the courts

have consistently recognized that it would be improper to

place such an obligation on him.

It is to be noted that we do nct plead that the stevedore

contractor should escape liability. The Longshoremen’s and

Harbor Workers’ Compensaticn Act forecloses any such

plea. The stevedoring industry, like any other industry,

and regardless of fault, must pay an injured employee

the amount of compensation found to be due — carrying

the burden of an unlimited medical expense and a life-

long compensation payment if the circumstances justify

such an award.

Against the foregoing backgrcund, an attempt is made

in the instant case to have Your Honors hold that the

instantaneous negligence of a longshcreman resulting in

the injury of a fellow worker renders an otherwise ad-

mittedly seaworthy ship unseaworthy, and may serve as

the basis for a recovery for which, as surely as night

follows day, the stevedore contractor will be required to

pay.

The illustration cited by Judge Bryan in his dissent in

Venable’ is singularly apposite and may be applied to

a lunch pail as well as to a hammer, wrench or other

tool. Petitioner would have this Court hold that a vessel

becomes unseaworthy if a longshoreman walking along the

deck with his dinner pail accidently drops the pail on

16 Supra, n. 8, at 354.

7

the foot of a fellow worker walking beside him and

causes a broken toe. Applying the “but for” rule of

elementary tort law, an answer might be made in the

light of present conditions that the fellow worker should

have been furnished with safety shoes which would have

precluded injury. But what answer may be made if

the pail were dropped on the fellow worker’s hand rather

than on his foot? We submit that such negligence, al-

though leading to the payment of compensation under

the Act, cannot in theory or in fact create an unsea-

worthy condition.

We should point out that we are not here concerned

with an unseaworthy condition created by the negligence

of a longshoreman," or with defective gear brought on

board by the stevedoring contractor,’* or with an improper

method of loading,’® or with an insufficient number of

men being assigned to perform a job.” We are here con-

cerned solely with an attempt to extend the doctrine of

damages being awarded for unseaworthiness caused by

the instantaneous negligence of a longshoreman where no

faulty “condition” preexisted the injury.

The contention may be made that the doctrine of re-

covery for negligence is subsumed by the doctrine of re-

covery for unseaworthiness. That approach, however, does

not meet the question here presented and the basic fallacy

of such a position can easily be pointed out by an analysis

- Crumady v. The Joachim Hendrik Fisser, 358 U. S. 423, 79 S. Ct.

(1959).

18 Alaska SS Co. v. Petterson, 347 U. S. 396, 74 S. Ct. 601 (1951).

19 Morales v. City of Galveston, 275 F. 2d 191 (5th Cir.), vacated and

remanded 364 U. S. 295, 81 S. Ct. 107 (1960); on remand, 291 F. 2d 97,

aff'd. 370 U. S. 165, 82 S. Ct. 1226 (1962).

20 Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S. Ct.

1410 (1967).

8

of the holding of the Court in Trawler Racer,” which

decision is generally recognized as the keystone on which

the modern concept of unseaworthiness has been built by

this Court. Your Honors there rejected the contention that

transitory unseaworthiness is limited by concepts of com-

mon law negligence, but you have nevertheless presupposed

the existence of a faulty or unseaworthy condition, al-

though such condition was temporary in nature, saying:

“There is no suggestion in any of the de-

cisions that the duty is less onerous with respect

to an unseaworthy condition arising after the

vessel leaves her home port, or that the duty

is any less with respect to an unseaworthy con-

dition which may be only temporary. Of particu-

lar relevance here is Alaska Steamship Co. v.

Petterson, supra. In that case the Court affirmed

a judgment holding the shipowner liable fcr in-

juries caused by defective equipment temporarily

brought on board by an independent contractor

over which the owner had on control. That de-

cision is thus specific authority for the proposi-

tion that the shipowner’s actual or constructive

knowledge of the unseaworthy condition is not

essential to his liability. That decision also effec-

tively disposes of the suggesticn that liability for

a temporary unseaworthy condition is different

from the liability that attaches when the con-

dition is permament.

“There is ample room for argument, in the

light of history, as to how the law of unsea-

worthiness should have or could have developed.

21 Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 80 S. Ct. 926 (1960).

9

Such theories might be made to fill a volume of

logic. But, in view of the decisions in this Court

over the last 15 years, we can find no room for

argument as to what the law is. What has evolved

is a complete divorcement of unseaworthiness lia-

bility from concepts of negligence. To hold other-

wise now would be to erase more than just a page

of history.

“What has been said is not to suggest that the

owner is obligated to furnish an accident-free

ship. The duty is absolute, but it is a duty only to

furnish a vessel and appurtenances reasonably

fit for their intended use. The standard is not

perfection, but reasonable fitness; not a ship that

will weather every conceivable storm or with-

stand every imaginable peril of the sea, but a

vessel reasonably suitable for her intended serv-

ice. Boudoin v. Lykes Bros. S. S. Co., 348 U.S.

336, 75 S. Ct. 382, 99 L. Ed. 354.” (Italics ours).

Nowhere in any decision that Your Honors have an-

nounced has there been a suggestion that the basic pre-

requisite of the existence of an unseaworthy condition as

a foundation of liability has been abandoned. In Morales,

supra, this Court held that an unsafe condition in cargo

being loaded aboard a ship did not per se render the

vessel unseaworthy, although it is acknowledged, of course,

that the dissent there did indicate that liability should

be imposed because the vessel was not reasonably fit in

view of the shipowner’s prior knowledge of the possibility

that the fumigation of the grain could cause personal in-

jury to those working in proximity to it. The condition,

however, existed at all times, so that even if the dissent

there were to become the law of tomorrow the holding

10

could quite easily be reconciled with today’s jurisprudence,

Likewise, in Waldron, supra, the insufficiency of the

manual assistance afforded to the injured plaintiff con-

stituted the basis for the claim of unseaworthiness, but

again Your Honors had before you an existing condition

which gave rise to the injury. In each of the cases which

have heretofore been described as constituting the succes-

sive high water marks in the determination of unsea-

worthiness, the existence of some condition will be found

on which the Court predicated liability.

The foregoing, of course, is consonant with the con-

cept that unseaworthiness is condition and that negli-

gence is causation. The one does not mean the other.

Two completely separate and different doctrines are in-

volved, and we respectfully submit that those who claim

that negligence is subsumed by unseaworthiness in this

field simply fail to recognize the difference between the

two.

Despite the suggestion by Judge Moore that the word

““unseaworthiness’ may have become a term of art wholly

unrelated to reality’,?? it can hardly be believed that so

well defined a word, in use for so many years, can s0

radically change its meaning. No social condition dictates

the necessity for such a change. No suggestion can be

made that a change is necessary because of a concept,

newly advanced, that the word has always been improp-

erly defined.

On the contrary, the evolution of the law over the past

two or three decades has left no room for equivocation:

“seaworthiness” connotes condition, not causation. The

22 Moore, J., in Tarabocchia, supra, n. 1, at 478.

11

divorce from concepts of negligence must remain finalized.

Although counsel must frankly state to the Court that

the decision in Mascuilli does not generally seem to be

understood by the bench or the bar, one does not go to

Delphi for an interpretation of the Oracle’s words. No one

can be more familiar with the meaning of a decision than

the Court which rendered it, and it would serve no useful

purpose to present any argument to Your Honors as to the

proper interpretation of that decision. We address our-

selves, therefore, not to the meaning of the Mascuwilli per

curiam, but to the proper answer to the question presented

by the application for the writ herein.

It is probable that the doctrine of operational negli-

gence causing actionable unseaworthiness stems, in the

Second Circuit at least, from the decision of that Court

in Grillea.** In that case, the fact that a longshoreman

had misplaced a hatch cover so as to cause it to be in a

position to fall created a condition of unseaworthiness

which resulted in an accident. The fact that the cover

was otherwise perfect was of no moment: its misplace-

ment created the unseaworthy condition, and even though

the physical act of misplacing the cover might stem from

negligence, the vessel was nevertheless unseaworthy at

the time of the accident.

“Instantaneous negligence”, accordingly, was not a fac-

tor in that case any more than it would be in any other

case where unworkmanlike conduct in a loading or dis-

charging operation aboard ship creates a condition which

causes an injury to a longshoreman. Candiano likewise

involved unseaworthiness. Hooks had been inserted in holes

%Grillea v. United States, 232 F. 2d 919 (2nd Cir. 1956).

—

12

in each end of a beam being lowered into a hold, but one of

the hooks became dislodged and the beam fell, causing the

injury. The fact that the hook had been negligently at.

tached to the beam caused the ship to become unseaworthy,

but again the condition of unseaworthiness was encount-

ered by the injured longshoreman. On rehearing, Judge

Moore expounded at length on his theory of the concept

of operational negligence causing unseaworthiness. He

pointed out that the time element is irrelevant, for prac-

tically no loading or unloading operation could be carried

on in such a manner as to permit it to be said at any

time that a phase of the operation had ceased and an-

other phase had started so as to cause the negligence to

be defined as instantaneous. His review of the case law

points up the difficulty in which a trial court finds itself

in attempting to give an instruction to a jury in a case

involving operational negligence, which is one of the

issues that must be faced in any attempt to reconcile

doctrine with practicalities.

As Judge Moore points out, the clarity of the definition

of seaworthiness given in the Trawler Racer “has been

considerably dimmed by appellate decisions”. A vessel

which is reasonably fit or reasonably suitable for its in-

tended use and service is no longer seaworthy by the

definition (in this context) accorded that word by the

lower courts. The definition has completely lost its signific-

ance, at least in the Second Circuit, by the confusion of

unseaworthiness with negligence through what Judge

Moore describes as “instantaneous alchemy”’.**

Following Candiano came Alexander (decided on the

same day), where the claimed unseaworthiness stemmed

24 Moore, J., concurring in Candiano, supra, n. 6, 386 F. 2d 444, 449.

i

13

from an improper placing of dunnage as well as from

an incompetent crane operator whcse negligence dis-

placed the dunnage.

Next in the line of cases decided in the Second Circuit

would seem to be Cleary,** which involved the negligently

improper spotting of a boom coupled with negligent op-

eration of the winches. The condition (improper spotting)

pre-existed the negligence of the winch operator and the

decision is consonant with the others in this line of cases.

The last case which counsel has been able to find in

the Second Circuit following this line seems to be Tara-

bocchia,"” where the Court held the ship liable for an

accident caused by the apparent negligent handling of a

sling cr winch by the stevedore company’s employees,

causing a platform attached to the wharf to fall and

injure the plaintiff. Judge Moore sat on that panel and

pointed out that the Second Circuit had

}

|

“committed itself to the proposition that opera-

tional negligence must be equated with unsea- }

worthiness of the ship. We have thus crossed

our Rubicon and if we are to retreat from our i

position, it must be over a bridge constructed by

the Supreme Court when, as and if it may choose

to resolve the apparent conflict between the Cir-

cuits. To hold that a negligent act of an employee

of a stevedore can instantaneously turn a proud

seaworthy ship into an unseaworthy floating

object may seem to defy common sense but “un-

seaworthiness’ may have become a term of art

wholly unrelated to reality. Possibly in a seman-

tic way we are dealing with what is ‘essentially

a species of liability without fault’.”’?*

2 Cleary v. United States Lines Co., 411 F. 2d 1009 (2nd. Cir. 1969).

26 Supra, n. 1.

27417 F. 2d 476, 478.

14

It is not hard to discern from these four opinions that

the Second Circuit would never have gone so far as to

hold that operational negligence constitutes unseaworthi-

ness were it not for the fact that it interpreted Mascuilli

as requiring that result. Mascuilli indeed is the forerun-

ner of the conflict in theory between the Circuits, for

despite the majority opinion in Venable, the ruling on

the petition for rehearing shows that the Court en bane

was of the opinion that although operational negligence

might cause unseaworthiness, every such instance did not

create an unseaworthy condition so as to give rise to

liability.

This is made clear by the subsequent affirmance by the

Fourth Circuit of Judge Harvey’s memorandum opinion

on the appeal taken from a motion maintaining a sun-

mary judgment in favor of the defendant in Benton.”

The court below remarked that it had seen no case where

an injury sustained by a wrench negligently thrown into

a hatch could be classified as one caused by unseaworthi-

ness in that there had been no condition created. Unsea-

worthiness, it was held, contemplates condition.

In the Ninth Circuit, the rule is the same as in the

Fifth: the distinction is maintained and instantaneous

negligence is held not to create unseaworthiness. In Tim,”

the only complaint was the negligence of the crane op-

erator. A long line of cases cited in the course of the

opinion indicates that the Ninth Circuit has consistently

refused any doctrine that unseaworthiness arises out of

instantareous negligence, the Court there pointing out

28 Benton v. United States Lines, Inc., 297 F. Supp. 87 (D. Md.

1968), aff'd. 408 F. 2d 378 (4th Cir. 1969).

29 Supra, n. 9.

15

that a defective condition must exist for the Court to hold

a vessel unseaworthy.

The decisions of the Fifth Circuit, including the deci-

sion below, remain to be discussed. That Court apparently

first decided that operational negligence does not consti-

tute unseaworthiness in Antoine.*° The Antoine doctrine

was affirmed in Grigsby, and reaffirmed in Duncan™ as

well as in the instant case.

A tabulation of the opinions in the foregoing cases may

therefore be said to reflect the reaction of a substantial

majority of the Judges on the Fourth, Fifth and Ninth

Circuits, and at least a large number of the Judges

on the Second Circuit: the score is impressive in re-

jecting the concept that the existence of a pre-accident

condition is not a requisite to the finding of liability based

on unseaworthiness. Absent the Mascuilli per curiam, we

dare say there would be a complete unanimity among

all Circuits in holding that instantaneous negligence,

standing alone, does not give rise to an action for damages

based on unseaworthiness.

If counsel were permitted to go further in this pro-

jection, we would be inclined to state that a great ma-

jority of the judges whose dockets require them to hear

most of the “circular liability” cases would stop far

short of Sieracki, Ryan and Yaka. Most courts, we sub-

mit, would gladly return to the days when a ship, to be

labelled “unseaworthy”, would have to have something

inherently wrong with her before she could be called not

reasonably fit for cargo or men. Then, spilling coffee

beans on a wharf as a result of slack bags, rigging a

8° Antoine v. Lake Charles Stevedores, 376 F. 2d 448 (5th Cir. 1967).

: sn Duncan yv. Transeastern Shipping Corp., 413 F. 2d 1023 (5th Cir.

).

16

hatch tent with new wire rope which proved defective and

broke, bringing on board ship a latently defective snatch

block, or any other similar type of “default” in the per-

formance of a stevedore’s duties would visit liability on

him alone. That liability would be exclusive of any other,

It would be based on the unambiguous prcvisions of the

Longshoremen’s and Harbor Workers’ Compensation Act

as enacted by the Congress, and not on any concept of

the unseaworthiness of a ship which requires the ship-

owner to act as a buffer between the longshoreman and

his employer. It must be recognized that rightly or wrong-

ly, no system has yet been devised by the ingenuity of

man which guarantees that an accident will not occur.

If such a guarantee is exacted from the shipowner, he is

required to do exactly what Your Honors have said is

not necessary: insure an accident-free vessel.

It is submitted that at this moment in our socio-legal

development, an injured maritime worker, be he long-

shoreman, harbor worker or seaman, probably has more

rights than any other worker in industry. No social or

legal need can be shown invoking policy reasons in

order to “impose new financial burdens on stevedoring

companies in plain violation of the policy Congress adopted

in the Longshoremen’s and Harbor Workers’ Compensa-

tion Act.”** On the contrary, the need is to “give effect

to the law as Congress has written it”’,** and get away

from characterizing the theory and rationale of judicial

opinions as “instantaneous alchemy”™ and “judicial

legerdemain”’.**

32 Black, J., dissenting in Italia Societa per Azioni di Navigazione Vv.

Oregon Stevedoring Co., 376 U.S. 315, 326, 84 S.Ct. 748 (1964)

33 Harlan, J., dissenting in Grimes v. Raymond Concrete Pile Co., 356

U.S. 252, 255, 78 S.Ct. 687 (1958)

34 Judge Moore, supra, n.24

35 Stewart, J., dissenting, in Calbeck v. Travelers Insurance Co., 370

U.S. 114, 132, 82 S.Ct. 1196 (1962)

17

CONCLUSION

We respectfully urge that if Your Honors see fit to

grant the petition herein, you do so for the purpose of

bringing the Second Circuit into line with the Fourth,

Fifth and the Ninth, and that the Court affirm the de-

cision below and hold that instantaneous negligence is

not tantamount to unseaworthiness, a word which has

always been recognized to refer to a condition pre-existing

the incident giving rise to the claim.

Respectfully submitted,

CHARLES KOHLMEYER, JR.

1800 National Bank of Commerce

Building

New Orleans, Louisiana 70112

Attorney for Respondent

February 6, 1970

Of Counsel:

Benjamin W. Yancey

Maurie D. Yager

Terriberry, Carroll, Yancey & Farrell

Thomas W. Thorne, Jr.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher