Petitioners Brief — Usner v. Luckenbach Overseas Corp.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1969

NO. oe 7

JOSEPH CHARLES USNER

Petitioner

versus

LUCKENBACH OVERSEAS CORPORATION and

ISTHMIAN LINES, INC.

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF ON BEHALF OF THE PETITIONER

LAW OFFICES H. ALVA BRUMFIELD

EVANGELINE M. VAVRICK

H. ALVA BRUMFIELD

H. ALVA BRUMFIELD, III

Suite 200

Natchez Building

500 Natchez Street

New Orleans, Louisiana 70130

ES Sn SSeS

TABLE OF CONTENTS

OPINIONS BELOW

Page

JURISDICTION

QUESTIONS PRESENTED

STATEMENT OF THE CASE

I

CONCLUSION

TABLE OF CASES

Alaska S.S. Co. v. Peterson

347 U.S. 896, 74 S. Ct. 272 (1954)

Albanese v. Maats

382 U.S. 283, 86 S. Ct. (1965) 12

Boudoin v. Lykes Bros. S.S. Co.

348 U.S. 336, 75 S. Ct. 382 (1955) _..-__-___._ 7-9-11

Crumady v. The J. H. Fisser

358 U.S. 4238, 79 S. Ct 445 (1959) _.._. 4-6-9-12-14

Grigsby, et al. v. Coastal Marine Service of Texas, Inc.

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

Grillea v. United States

(2d Cir. 1956), 332 F. 2d 919 10

Gutierrez v. Waterman §.S. Co.

373 U.S. 206, 83 S. Ct. 1185 (1962) 12

Jackson v. Lykes Brothers S.S. Co.

386 U.S. 731, 87 S. Ct. 1019 12

Luckenbach Overseas Corp. v Usner

(5th Cir. 1969), 413 F. 2d 984 1

Mahnich v. Southern §S.S. Co.

$21 U.S. 96, 64 S. Ct. 455 (1944) ______._ 4-6-10-11-13

TT

TABLE OF CASES (Continued)

Page

Mascuilli v. the United States

241 F. Supp. 354 (E.D. Pa. 1965) 6-8

Mascuilli v. the United States

358 F. 2d 133 (8rd Cir. 1967) 6

Mascuilli v. the United States

(1967), 387 U.S. 287, 87 S. Ct. 1705 _.. _ 2-3-4

Mitchell v. Trawler Racer, Inc.,

362 U.S. 539, 80 S. Ct. 926 (1960) 12

Pope and Talbot v. Hawn

846 U.S. 406, 73 S. Ct. 1129 (1953) 11

Radovich v. Cunard 8.8. Co.

364 F. 2d 1949 2 Cir. (1966) 14

Reed v. The Yake

875 U.S. 872, 83 S. Ct. 1849 (1963) 12

Seas Shipping Co. v. Sieracki

324 U.S. 85, 66 S. Ct. 872 (1946) 11

Skibinski v. Waterman §.S. Co.

360 F. 2d 539, 2 Cir. 1966 13

Waldron v. Moore McCormack

87 S. Ct. 1410, 386 U.S. 724 10-12-14

III

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

NO. 675

JOSEPH CHARLES USNER

Petitioner

versus ;

LUCKENBACH OVERSEAS CORPORATION and.

ISTHMIAN LINES, INC. Bish

Respondent

BRIEF ON BEHALF OF THE PETITIONER

JOSEPH CHARLES USNER —~ ©

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit is reported at 413 F. 2d 984. The opinion of

the Court of Appeals for the Fifth Circuit in Grigsby,

et al. v. Coastal Marine Service of Texas, Inc.. et al.,

incorporated in the Usner opinion by reference is reported

in 412 F. 2d 1011.

JURISDICTION

The jurisdiction of this court is invoked pursuant to

Title 28 Section 1254 (1) United States Code. The

judgment of the Court of Appeals for the Fifth Circuit

in Luckenbach Overseas Corporation and Isthmian Lines,

Inc. v. Joseph Charles Usner was entered on July 3,

1969. Petition for the writ was timely filed, within 90

days from July 3, 1969, the date of the judgment.

2

QUESTIONS PRESENTED

(1) Did Mascuilli v. the United States, 387 U.S. 237,

87 S. Ct. 1705, abolish the defense of operational negli-

gence 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 operationa! negligence and unseaworthiness?

STATEMENT OF THE CASE

The essential facts of the case are not in dispute and

present an incidence of operational negligence at the

moment of injury.

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

independent contract stevedore was engaged in unload-

ing cargo consisting of bundles of steel rods, approximate-

ly 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 the vessel; the port

and starboard booms at the No. 3 hatch were being 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 preparatory to lifting them

from the barge. Their function was simply to lift each

bundle temporarily, so that 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.

—

3

On the day the petitioner 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 petitioner’s accident. At ap-

proximately 2:30 p.m., the winch operator, operating the

No. 2 port winch, lowered the breakout slings just above

petitioner’s head and beyond his reach. Petitioner mo-

tioned 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 lowered the breakout sling too quickly

and too far. The breakout gear struck petitioner causing

him to fall into the barge and sustain serious and perma-

nent injuries.

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

respondent claiming benefits pursuant to the General

Maritime Law. On July 31, 1967, the respondent filed

a motion for 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 ship’s gear functioned properly and that if the acci-

dent was caused by negligence, that negligence could

only have been the instantaneous negligence of the long-

shoremen, which negligence did not render the vessel

unseaworthy.

The motion for summary judgment was opposed by

petitioner asserting that operational negligence as a de-

fense had been obliterated by the Supreme Court of the

United States in its per curiam in Mascuilli v. the United

States, 387 U.S. 237, 87 S. Ct. 1705. Respondent’s motion

for summary judgment was denied.

4

Respondent then filed a motion for rehearing or in

the alternative for leave to take an interlocutory appeal

pursuant to Title 28 of the United States Code, Section

1292 (b).

On August 30, 1967, respondent was granted leave

to file for interlocutory appeal 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 respondents 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.

ARGUMENT

The question of law presented herein is, did the United

States Supreme Court in Mascuilli v. the United States,

387 U.S. 237, 87 S. Ct. 1705, abolish the time test which

heretofore distinguished unseaworthiness from operation-

al negligence at least within the circuits? Or stated an-

other way — did the Supreme Court in Mascuilli abolish

the defense of operational negligence or did it simply

reaffirm its position in Mahnich v. Southern S.S. Co.,

321 U.S. 96 (1944) and Crumady v. The J. H. Fisser,

358 U.S. 423 (1959) neither of which establish a time

test.

—

It is submitted that Maseuilli, as do Maknich and

Crumady, stands for the proposition that the misuse of

proper equipment by a longshoreman resulting in injury

to a co-worker renders the vessel unseaworthy without

regard to an interval of time between the negligent act

and the resulting condition of unseaworthiness. Neither

Mahnich nor Crumady allude to a time interval but to

a condition which exists when and where the work is

to be done.

Counsel for petitioner submits that the Supreme Court

in Mascuilli reaffirmed Mahnich and Crumady.

The time test, or the ripening of a condition of unsea-

worthiness over the passage of time, is a creature of

the appellate courts. The Supreme Court has consistently

held a vessel] to be unseaworthy when an inquiry as to

whether or not the condition complained of made the

vessel unsafe and dangerous for the work at hand has

been answered affirmatively.

Mascuilli is a classic example of operational negligence

resulting in instant unseaworthiness. On an otherwise

seaworthy ship, a tag line tender was killed during a

loading operation aboard a government vessel by the

negligence of his fellow employees, in their failure to

operate the winches in unison, resulting in the creation

of a tightline condition which caused a heavy shackle

to part, recoil and inflict the mortal wounds, all in an

instant.

The decedent’s wife sued the vessel owner alleging the

ship’s first officer was negligent and the vessel was

unseaworthy. This district court held that the vessel

was at all times in a seaworthy condition, and that the

6

accident was caused by the failure of the longshoremen

to comply with proper. loading procedures. The trial

court’s summation of the cause of the accident was as

follows:

“In summary, the Court finds that the vessel

and all its equipment was in a_ seaworthy

condition at all times, and remained so through-

out the entire loading operations. The accident

was caused solely by the negligent operation of

the stevedoring crew using seaworthy equipment

in such a manner as to cause the accident to

occur so instantaneously that the Third Officer

was unable to warn anyone or to prevent its

happening.” Mascuilli v. United States, 241 F

Supp. 354, (E.D. Pa. 1965).

The Court of Appeals for the Third Circuit affirmed

per curiam, and held that the findings of fact and con-

clusions of law by the trial court were not clearly er-

roneous:

“This case is before us for the second time. In

our judgment, upon consideration of the whole

record, including, inter alia appellant’s thorough

statement of her view of the question involved,

the findings of fact by the Trial Court, that

the vessel and its equipment were in a seaworthy

condition at all times throughout the loading op-

eration and that the accident was caused solely

by the negligent operation of the stevedoring

crew as stated in finding of fact #35, were not

clearly erroneous.” Mascuilli v. United States,

358 F. 2d 133 (3rd Cir. 1967).

This Honorable Court granted certiorari and sun-

marily reversed citing Mahnich v. Southern S.S. Co.,

321 U.S. 96, 64 S. Ct. 455 (1944) and Crumady v. The

—

7

Joachim Hendrick Fisser 358 U.S. 423, 79 S. Ct. 445

(1959).

The Petitioner’s Brief for Certiorari in Mascuilli posed

three questions. As this Honorable Court reversed the

two lower courts, it must have answered at least one

of these questions in the affirmative.

Analysis of which of the three questions was answered

affirmatively has led to different conclusions and has

not resolved the conflict which existed in the circuits

prior to Mascuilli. The confusion which has plagued both

bench and bar and the entire maritime industry con-

tinues.

Though this Honorable Court did not render an opinion

in Mascuilli an examination of Mahnich and Crumady

leads to the determination that the second question was

answered affirmatively.

Briefly the questions posed by the petitioner in

Mascuilli were as follows:

(1) Did a prior unseaworthy condition come into

play by the tightline condition?

(2) Did the negligent handling of proper equipment

by the longshoremen create a dangerous condition render-

ing the vessel unseaworthy?

(3) Was the vessel unseaworthy because the long-

shoremen were “not equal in disposition and seamanship

to the ordinary men in the calling,” as was found in

Boudoin v. Lykes Brothers, 348 U.S. 336 (1955)?

It is this writer’s opinion that this Honorable Court’s

affirmative answer to the second question solely prompted

the reversal.

With respect to the first question, the trial court in

effect distinguished Crumady on facts. In both Mascuilli

and Crumady the automatic cut-off devices on the winches

were set in excess of safety requirements. However, in

Mascuilli, the two winches involved in the tightline con-

dition could not possibly trip; the after port winch was

in paying out position +1 and the forward starboard

winch was in neutral. In neither of these positions would

the safety devices on the winches trip. There was un-

controverted expert testimony by defendant’s witnesses

to the effect that when a tightline condition occurs in-

volving a winch in the paying-out position and another

winch in the neutral position, there is no known safety

device in marine architecture and engineering that would

or could have prevented the type of accident which

actually occurred. (Mascuilli, 241 F. Supp. 354, F.F.

#33 at p. 360-361). This in effect distinguishes Crumady

since in that case the winch was paying in and the

safety device could have tripped before the boom snapped

had the cut-off device been properly set. The excess

setting in Mascuilli albeit improper, and perhaps even

a defective condition, had no causal connection with the

accident since there was no known safety device which

could have prevented it. The after starboard winch could

not have prevented nor measured the pull along the

tightline. There was no safety device to be adjusted for

winches in those positions; therefore, when the shackle

broke, it could only have been caused by the negligent

use of proper equipment — the petitioner’s second ques-

tion.

The third question posed by petitioner must be an-

—

9

swered in the negative for several reasons. Had this

Court intended to reverse on this point, it would have

cited Boudoin as controlling, which it did not do.

Also, liability under the Boudoin decision is a ques-

tion of degree, 348 U.S. 336, 339-340 (1955). It would

seem clear that a single act of negligence by otherwise

competent longshoremen would not require the conclusion

that they were unequal in disposition and seamanship to

the ordinary men of the calling.

Since this Court did not reverse on the basis of peti-

tioner’s first or third questions, it must have reversed

on the basis of the second question, alone, namely that

the negligent handling of proper equipment by long

shoremen rendered the vessel operationally unseaworthy

instantly.

The trial court in Mascuilli concluded as a matter of

fact that the vessel was seaworthy at all times, and

that the accident was caused solely by the negligent op-

eration of the stevedoring crew using proper equipment

improperly. The conclusion of law reached was that on

the basis of the facts found there could be no recovery

for complainant since the shipowner was not obliged to

furnish an accident-free ship.

The Appellant Court in per curiam affirmed the de-

cision of the trial court. Why then did this Court sum-

marily revcrse a conclusion of law of the two lower courts

that negligent handling of proper equipment does not

render the vessel unseaworthy?

This answer is to be found in Mahnich and Crumady.

In Crumady v. The J. H. Fisser, 358 U.S. 423 (1959),

—

10

this court quoted approvingly from Grillea v. United

States (2 Cir. 1956) : 232 F.2d 919

“Tt was held in Grillea v. U.S. . . . that steve-

dores themselves could render a ship pro tanto

unseaworthy and make the vessel owner liable

for injuries to one of them... We need not go

so far as to sustain the District Court here.”

(Emphasis added). (Id. at p. 427).

Just three weeks prior to its decision in Maséuilli,

this court further clarified the language in Crumady:

“And in Crumady . . . we further clarified the

extent of unseaworthiness liability by holding

that, even though the equipment furnished for

the particular task is itself safe and sufficient,

its misuse by the crew renders the vessel un-

seaworthy.” Waldron v. Moore-McCormack, Inc.,

386 U.S. 724, (1967)

When Mascuilli was presented to this court, it simul-

taneously granted certiorari and reversed on the basis

of what was already the law as stated in Crumady.

Mahnich was cited for the proposition that the court

could review the concurrent findings of seaworthiness

by the two lower courts below, where such findings con-

tained an erroneous conclusion of law. This court was

obviously of the opinion that the misuse of proper equip-

ment rendered the vessel unseaworthy as a matter of

law, and the failure of the two courts below to so hold

was reversible error.

Doctrinal trends of this Supreme Court since Mahnich

321 U.S. 96 (1944) have shown an ever increasing liberal-

ization of the unseaworthiness doctrine.

——

11

The Supreme Court has guarded the doctrine of sea-

worthiness and has in each instance wherein an attempt

has been devised to encroach upon it or limit its applica-

bility tolerated no departure from the concept of a species

of liability without fault imposing upon the shipowner

an absolute, non-delegable duty to all who come within

the range of the doctrine’s humanitarian policy. A brief

review of the pertinent jurisprudence aptly demonstrates

this Court’s position that it is a concept divorced of negli-

gence, an absolute non-delegable duty, due when and

where the work is to be done.

Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455

(1944) Unseaworthiness exists even if sound gear

and equipment were aboard and available, though

not used.

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872

(1946) The duty to provide a seaworthy vessel ap-

plies when the vessel is in port as well as at sea.

Sea Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct.

872 (1946)

Pope and Talbott v. Hawn, 346 U.S. 406, 73 S. Ct. 1129

(1953) The duty of providing a seaworthy vessel

is owed to shoreside personnel doing work tradition-

ally done by seaman — “substitute seaman”.

Alaska Steamship Co. v. Pettersen, 347 U.S. 396, 74 S.Ct.

272 (1954) The duty is owed by the shipowner

though control has been relinquished and ship’s gear

is not involved.

Boudoin v. Lykes Brothers S.S. Co., 348 U.S. 336, 75 S.

Ct. 382 (1955) The doctrine is not solely limited to

12

structural or material features of the ship but ex-

tends and is applicable to personnel also.

Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S. Ct.

445 (1959) The doctrine embraces improper use of

seaworthy equipment.

Mitchell v. Trawler Racer, Inc., 362 U.S. 539. 80 S. Ct.

926 (1960) The doctrine embraces “transitory con-

ditions”.

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

1185 (1962) The doctrine is applicable to shoreside

injuries caused by the vessel’s unseaworthiness as

well as to injuries sustained aboard ship as a

result of the vessel’s unseaworthiness.

Reed v. The Yaka, 375 U.S. 872, 83 S. Ct. 1849, 429

(1963) The duty is owed to a longshoreman even

if his employer is also the time charterer of the

vessel.

Albanese v. Maats, 382 U.S. 283, 86 S. Ct. (1965) Actual

knowledge of the dangerous condition is not required

for liability for unseaworthiness to attach.

Jackson v. Lykes Brothers S.S. Co., 386 U.S. 731, 87 S.

Ct. 1419 The duty is owed the longshoreman even

if his employer is also the owner of the ship.

Waldron v. Moore-McCormack, 87 S. Ct. 1410, 386 US.

724 The duty is owed and the shipowner cannot

escape liability because men rather than machines

or physica] equipment is used to perform ship’s work.

The pertinent consideration has always been the exist-

| oil

13

ence of the unseaworthy condition, not the method of its

creation.

Judge Hays in affirming recovery for the plaintiff in

an alleged “operational negligence” case, Skibinski v.

Waterman Steamship Company, 360 F 2d 539, 2 Cir.

1966 stated:

‘In defining unseaworthiness we are not con-

cerned with the conduct or process by which

fitness is changed to unfitness. Our focus is

upon the resulting condition of the ship.”

The condition which comes into play when unsafe pro-

cedures and methods are used by longshoremen while

performing their duties with otherwise seaworthy equip-

ment is unseaworthiness. The act of negligence which

creates the condition, if it results in immediate injury,

is no less unseaworthiness. The condition which results

is an unsafe place in which to work or a situation

wherein the vessel and its appurtenances are not reason-

ably safe for their intended use at the time and place

where the work is to be done. The end result of a long-

shoreman lowering a boom, negligently striking a fellow

worker and that of a boom collapsing because of some

structural defect is the same at the site where the boom

inflicts an injury — unseaworthiness and an unsafe place

in which to work.

Virtually all cases of unseaworthiness other than

those resulting from structural failure are cases in which

operational negligence, though not instantaneous, has re-

sulted in an unseaworthy condition.

Mahnich v. Southern S.S. Co., 321 U. S. 96 (1944) Use

of improper rope when proper was available.

a

14

Crumady v. Joachim Hendrik Fisser, 358 U.S. 423 (1959)

Rendering safe equipment unsafe and unseaworthy

by the manner in which it was used.

The Circuits have had considerable difficulty in de.

termining when operational negligence ends and unsea-

worthiness begins. The distinction is untenable —a dis-

tinction without a difference.

In Radovich v. Cunard Steamship Co., 364 F. 2d 1949, 2

Cir. (1966) it was stated:

“A position that is impossible to do so (differen-

tiate between operational negligence and an un-

seaworthy condition) with fairness and reason,

in fact poses the question whether the distinc-

tion should not be dispensed with altogether.”

The blending of the two concepts into one was recently

recognized by the United States Supreme Court through

Mr. Justice White speaking for the minority in the 54

decision in Waldron v. Moore-McCormack Lines, Inc.

“While it is true that unseaworthiness is legally

independent of negligence . . . it cannot be de-

nied that in many cases unseaworthiness and

negligence overlap . . . / think the claim of

negligence was identical with the claim of un-

seaworthiness.” (Emphasis added).

CONCLUSION

It is respectfully submitted that the distinction be-

tween operational negligence and unseaworthiness is a

distinction without a difference. It is further submitted

that this Honorable Court did, in Mascuilli, abolish the

— aeeeeeaaeae

15

defense of operational negligence for the reason that

operational negligence at the moment of injury does

render the vessel unseaworthy. For the foregoing reasons

the judgment of the United States Court of Appeals for

the Fifth Circuit remanding this matter for entry of

Summary Judgment should be reversed.

Respectfully submitted,

LAW OFFICES H. ALVA

BRUMFIELD

Suite 200

Natchez Building

500 Natchez Street

New Orleans, Louisiana 70130

Evangeline M. Vavrick

and

16

PROOF OF SERVICE

I, H. Alva Brumfield, attorney for the petitioner an

a member of the Bar of the Supreme Court of ¢

United States, hereby certify that on this day, I }

served copies of the foregoing brief on:

a

Maurie Yager, Esquire %

TERRIBERRY, CARROLL, :

YANCY & FARRELL <

2141 International Trade Mart Bldg.

2 Canal Street we

New Orleans, Louisiana eS

and

Charles Kohlmeyer, Esquire

Thomas Thorne

LEMLE, KELLEHER,

KOHLMEYER, MATTHEWS

& SCHUMACHER

1800 National Bank of Commerce

Bldg.

New Orleans, Louisiana

by mailing a copy thereof, postage prepaid, addressed :

to their respective offices, this ___. day of aaa

1970

H. Alva Brumfield, Esquire