# Appendix — Cooper Stevedoring Co. v. Fritz Kopke, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0294%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 417 U.S. 106 ## Text APPENDIX In THE Supreme Court of the United States Octroser TERM, 1973 No. 73-726 \ Goorer STEvEDoRING CoMPANY, A ¥ Petitioner Vv. Fritz Kopxe Et Au, Respondents ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 7, 1974 Petirion FoR CERTIORARI FILED NovEMBER 2, 1973 CERTIORARI GRANTING JaNuaRY 7, 1974 Y NLT a BORLA INDEX PaGE Docket Entries ..........ccccccccccccsseseecceecesseseeceeessenceeeecseeeseeteceeceeneneenes (il) Pleadings and Orders in District Court Plaintiff's. Second Amended Original Complaint ............ Third Party Complaint ...............::scseceeseeseeseceseeeteeeneseeeenes Pre-Trial Order ..........c..:c-sccssccosssscsccscessscsesscccsncenscnessnsssegeoses Order of November 30, 1971 .0.0.........::ccscessseseeeseesceseeeeeenee nese 16 Opinion of Court of Appealls .............-.:ssssecessssssssesnenenneneeeneeeees 18 Opinion of Court of Appeals on Rehearing ............-.--.---1-00 22 Testimony ..........cscececscesssesssessesesessssncncncnencssnsensssnscsessssersennsesecncnsess 24 4 5 Pe QOL OA. LGA “~ MA IF PTL OR GAEL REL LMI rarcanyrenre KET «69 H-1214 Ableet anes MEY 26 207 staid bois (Lear& Il- 20-7) 8-6 ah JUDGE JOHN V. SINGLETON, JR. TITLE OF CASE ATTORNEYS TROY M. SESSIONS | Fer Plains {BROCK & WILLIAMS Warner Brock, 250 )THE-MA : vs. | __ FRITZ KOPKE | vs Te Peeréen’ Di xte-Smith Re SS SS So ee 'PULBRIGHT, CROOKER & JAWC COOPER STEVEDCRING (3rd prty) CISEIESEU onk of the Southwest Bic lHouston, Texas 77002 BASIS OF ACTION:PERSONAL INJURIES - LONGSHOREMAN. SEEKS | usta EB icn' $50,000.00, INTEREST & COSTS. UNDER RULE 9(h) STE ee | pee we Se a | eanPrR STEVEMNR THE CO | JURY TRIAL CLAIMEDBY 3rd PARTY DEF. Vnas @ids. Bien. ee on MAY 5, 1970 | Texas 77002 1355 PLAINTIFF'S ACCOUNT RECEIVED ! OfSBuURSED i OATE ou Ss T * RECEIVED OISBURSEC j 3rd Prty Dert. , 1 | x. E._1OBROCK & WILLIAMS |_ $15.00 / __'_ag.-71 Gooper Stewedar a Ss or (Lee Og /-/ES ! VFS | Notice of Appeal 5 00 _ Zalaal Lene ipl C&€ 1-179 ee a ee We we | | N2/x/n - nC )/ 21 a | j | ; | | \alzp) QL /-/7 Seer, if a2 | || | | | -_ | |} | __ _ | | | | ft | | | || _ | if | | {| | | i | | | a | | ' | | | { | | if a ! H ! t RECEIPTS. REMARKS. ETC. TO wHom Ove AMOUNT { | -— eo | : _ | _ ‘need: ——_—. ‘ i j -—_—_ 63> H-1214 JUDGE JOHN V: SINGLETON, _MAY 25, 1970 oars FILINGS— PROCEEDINGS Seetn avers 1969 p _ DE2. 10 COMPLAINT, FILED IN DUPLICATE. " —™ OST BOND, $250.00, FILED IN DUPLICATE. _"__"_|sumons WITH COPY DO & COPY OF COMPLAINT ATTACHED, ISSUED & DE- _"__"_ILIVERED TO U,S.MARSHAL FOR SERVICE. " 15 \SUMMONS RETURNED & PILED. EXECUTED ON 12/10/69. >» Bett] Torre "Ss SIRST ALLDSD CRISTUAD SMiPLSING, Filed. 122235-65) Tac SUT ULUNS Isoved. 1-7-70 Both Summons returned and filed. BOTH executed le-c}-097 2727770 | Defts. Answer. filed. " Cost Bond. filed. 4/6/70 | Deft.'s Motion to implead 3rd party. filed. WD 4/13/70 weenie | Gibson BS Se ee er eorreme F4 s0m ' jand entered. 4-21-70 | THIRE PARTY COMPLAINT (Mid-Gulf Stevedores), filed. 4-21-70 | THIRD PARTY COMPLAINT (Cooper Stevedoring), filed. 4-21-70 | THIRD PARTY SUMMONS (Mid-Gulf Stevedores) ISSUED. 4-21-70 | THIRD pouee susous (Cooper Stevedoring) ISSUED. s/5/79 | > = Si party vert. itd-sull Stevederee. 5’ %e3 MAY 11 ‘3rd PARTY SUMMONS RETURNED & FILED. EXECUTED ON 4/23/70. " " DpEF'S. MOTION TO STRIKE JURY DEMAND OF 3rd PARTY DEF., FILED I " "| DUPLICATE. = sa] " . "" BRIEF IN SUPPORT OF DEF'S. MOTION TO STRIKE 3rd PARTY DEF'S. JURY DEMAND, FILED IN DUPLICAT=. 3rd PARTY SUMMONS RETURNED & FILED. EXECUTED ON COOPER STEV.ON 4/24/70. 5-12-70, Motion of Cooper Stevedoring Company,Inc. to dismiss for : want of jurisdiction filed in duplicate 5-12-70 Notice of submission filed in duplicate (M/D 5-18-70) 5-14-70 | Rffidavit of Ervir S. Cooper ‘Ex. “A” to above rction), filed, 5-15-70 Defendant-third party plaintiffs reply to Cooper Stevedoring Co.inc.,motion for dismissal,fiied in dup Affidafit of £E.C.Faerber,filed in dup Brief in opposition to third-party defendant's motion to dism{ for want of jurisdiction,filed in dup Defendant-Third Party plaintiff's interrogatories,filed in du PBS DFA ee otion of Cooper Stevedoring Co., Inc. to dismiss for want of urisdiction, DENIED, Defendant's motion to strike third party ~ Hefendant's jury demand, GRANTED. SVSIR. 6-8-70 |Parties notified. rm. 6-15-70 | Answer of third party defendant Cooper Stevedoring Co-iInc., to interrogatories heretofore propounded by defendant third party —— plaintiiT tiled in dup P 5-15-19 | Deposition of Troy M.Sessions, filed 9-21-70 | Pretrial id. Frank Harmon was not present for the pretrial, Attorneys to complete discovery by January 1, 1971 and the case will be set on the Court's first trial docket in 1971. JVSIRi rm Parties notified. _3-24-71 Motion for Physical Examination, filed. /D 3-29-71 rd- _Deft., Cooper Stevedoring Co., Inc., riled. te Ome = 2 Pan SOS FA enmnectirurea Anineats kw favan 2 z4-—-1—- EVAuwrs Us gy VNU G YVANUWHE Whdd SCPLEOCUL Velce-iliadu basey Pitr., filed. Parties ntfd. by c/c mm 10/14/71 | M a i i rti i £3 cle. rlo) i EFORE THE COURT: Witnesses sworn and the rule invoked. Plaintiff's testimony begins. ; 11-3-71 | (JVS) 2ND DAY OP TRIAL BEFORE THE COURT: Plaintiff's testimon continues. Plaintiff rests. Defendant's test y s. Defendant rests. Court finds for plaintiff in the sum of ccamcenencnerauenail cal less lein of $987.32. - 11=30=71| (IVS) ORDER; Pltf, recovers $33,679.90 from Defts. Fritz Kopke, Inc, —~"Tand Alcoa Steamship Co, LESS $937.32 to be paid to Texas Employers —______Insurance Assn.; Defts, Fritz Kopke, Inc. and Alcoa Steamship Co. —_—__—__|_recover $19,339.95 from 3rd Party Deft. Cooper Stevedoring Co., Incl; - -half to 3rd party deft., fil es ntfd. by c/c, mm 12-2-71 APPEAL by 3rd Party Deft. Cooper Stevedoring Co., Inc., filed, Clerk served copies on other parties. mm 12=8-71 \|Notice of Appeal on behalf of Fritz Konke,Inc., et. al., Defts., éri25. {copies neilec ts other Parties.) ie §& afSiaction o e ° Findings of Pact, filed. M/D 1-10-72 mm 1-5-72 |Cost Bond on Zppeal for Deft FRITz KOPKE,INC., filed. 1=6-72_/ Transcript _of Findings of Pact and Conclusions of Law made by } J VS on 11-3-71, filed. mm I-6-72 + 1-13-72 | Defts. Fritz Kopke, Inc. | their Motion for Ad 2-23-72 |Reporter's Transcript of Proceedings, filed. _ 2-23-72 | Record on Appeal consisting of ali ORIGINAL PAPERS, EXHIBITS, ONE | }—DEPOSITION and Reporter's iranscript maiicd to Ct. of Appeais. = isi 2 Exhibits #n3 De-ssition returned fre= Et. of Appeals. -15-73 JUOG*ENT (or Mandate) of Court of tbpeals, rec’d & filed. (Judg=ent |_ jot Dist. Court “AFPIRMEL".) T i. 4 + ——— — e 2 ee tn ee Vv C.A. 69-H-1214 DaTE | PROCEEDINGS Pr met —S=I5=73 Opinion of Court of Appeals rec'd & filed _ 8-15-73 Opinion of Ct. of Appeals on Rehearing,—rec‘d-& filed oe a ee Fee — a ee ree -_ DEPT A SELLE AEST ERTL EAT ee re ea ee ee MUPPET EEE EEE EEE 7 In THE Ocroser Term, 1973 No. 73-726 Cooper Steveporinc Company, Petitioner v. Fritz Korxe Er Au., Respondents ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PetiTion FoR CERTIORARI FILED NovEMBER 2, 1973 CrertTionakI GRANTED January 7, 1974 [280] PLAINTIFF’S SECOND AMENDED ORIGINAL COMPLAINT (Caption Omitted) NOW COMES the Plaintiff, Troy M. Sessions, complain- ing of Defendants, Fritz Kopke and/or Alcoa Steamship Company, and with leave of Court first had and obtained, files this his Second Amended Original Complaint, and would show the Court the following: L That at all times hereinafter mentioned the defendant, Fritz Kopke, was and still is a corporation, having an office and agent for service with Central Gulf Steamship Corporation, Houston First Savings Building, Houston, ge eer ee Pe eT oe ee ee ee Pn ee eee OeP TT a ee ee vee Texas; and an office and agent for service with Furness, Withy & Company, Ltd., World Trade Building, Houston, Texas, where they were served with citation in this cause. That at all times hereinafter mentioned the defendant, Alcoa Steamship Company, was and still is a corporation, having an office and agent for service with Dalton Steam- ship Company, World Trade Building, Houston, Texas, where they were served with citation in this cause. The Defendants, Fritz Kopke and/or Alcoa Steamship Com- pany, have appeared by and through their attorneys of record and filed their answers herein. IZ. That at all times hereinafter mentioned the plaintiff was and still is a citizen of the State of Texas and resides in Houston, Texas in the Southern District of Texas. [281] Ii. Jurisdiction and venue lies in this Court. IV. On or about July 2, 1969, the defendant, Fritz Kopke and/or Alcoa Steamship Company, owned and/or man- aged, operated, manned, provisioned, supervised and con- trolled the “S/S Karina”, and at all times material hereto such vessel was situated upon the navigable waters of the United States and in navigation at a dock at the Port of Houston, Texas, and plaintiff was employed as a longshore- man in the service of the vessel, performing the services of a seaman. ¥. Plaintiff would show that at such time and on such occa- sion, the area of the “S/S Karina” where plaintiff was working at the time and on the occasion in question was ERE TS eS ers eats ea Se ee iC ee 3 unseaworthy as that term is known in law, which unsea- worthiness caused his injuries. WL Cumulative of the foregoing, but still insisting upon the same, plaintiff would show that the defendants, Fritz Kopke and/or Alcoa Steamship Company, their agents, servants and/or employees, were negligent at the time and on the occasion in question and such negligence caused or con- tributed to cause his injuries. VII. By reason of the unseaworthiness of the vessel and/or the negligence of the defendants, their agents, servants and/or employees, plaintiff has sustained injuries, physical pain, mental anguish, disability, loss of earnings and has been caused to incur medical and hospital services, with resulting expenses, all of which will continue in the future, and therefore has and will sustain damages in the sum of $150,000.00. [282] WHEREFORE, PREMISES CONSIDERED, plaintiff prays that upon trial hereof he have judgment against the defendants, jointly and severally, in the sum of $150,000.00, interest, his costs of Court, and such other and further relief, special and general, legal and equitable, to which he may show himself justly entitled. Brock & Wiru1aMs By: /s/ Warner F. Brock Warner F. Brock 250 The Main Building Houston, Texas 77002 224-6433 Attorneys for Plaintiff 4 [456] THIRD PARTY COMPLAINT (Caption Omitted) (Filed April 2, 1970) TO THE HONORABLE JUDGES OF SAID COURT: Comes now, Fritz Kopke, one of the Defendants in the above cause, hereinafter referred to as Defendant-Third Party Plaintiff, complaining of Cooper Stevedoring Com- pany, Inc., hereinafter referred to as either the stevedore or Third Party Deendant, and files this its Third Party Complaint and would show as follows: L Troy M. Sessions, hereinafter referred to as Plaintiff, has filed an Original Complaint and an Amended Com- plaint, complaining of Defendant-Third Party Plaintiff, a copy of said Complaints are attached hereto and marked “Exhibit A” and “Exhibit B” respectively for all purposes. IL. Defendant-Third Party Plaintiff is a business organiza- tion duly organized and existing under law. Ii. Third Party Defendant, Cooper Stevedoring Company, Inc., is a corporation whose principal office and place of business is P. O. Box 1566, Milner Building, Mobile, Ala- bama 36601, [457] and has no registered agent for service of process within the State of Texas, but who has trans- acted business within the State of Texas as defined by the statutes of this State, and by reason of the above men- tioned activities, and, pursuant to Article 2031 (b), of Vernon’s Annotated Texas Statutes, appointed the Secre- tary of State of the State of Texas as its agent for service eee a 5 of process upon whom service upon the said Third Party Defendant may be had. IV. Plaintiff has alleged in substance in his Complaints that on or about July 2, 1969, he was injured while working onboard the SS KARINA, as a longshoreman while in the employ of Midgulf Stevedores, Inc., as a result of the negligence of Defendant-Third Party Plaintiff and/or be- cause of the unseaworthiness of the vessel, for which Plain- tiff is claiming damages in the sum of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS. The Original Com- plaint and Amended Complaint, copies of which are at- tached hereto as “Exhibit A” and “Exhibit B” are referred to and incorporated herein for more particular description of the claim being made by the Plaintiff. 7. Prior to the date of the alleged accident, a contract was entered into with the Third Party Defendant, Cooper Stevedoring Company, Inc., to load cargo aboard the vessel at Mobile, Alabama, and the said vessel was then made available to the stevedore so that it could fulfill its obliga- tions under the contract for the stevedoring work. Third Party Defendant was contractually obligated to Defendant- Third Party Plaintiff to perform its work of loading the cargo aboard the vessel with reasonable care and reasonable prudence under the circumstances, and to perform the stevedoring work in a reasonably safe and workmanlike manner. [458] VL Defendant-Third Party Plaintiff alleges that at all times material hereto the Third Party Defendant was an inde- a ee EPL PEALE OLN EE SSN CES PAIS I Py 6 pendent contractor and was the employer of all men en- gaged in loading activities aboard the vessel at Mobile, Alabama, and that the stevedore was in full control of that part of the vessel complained of by the Plaintiff during loading activities, as well as all workmen employed in con- nection therewith. That said Third Party Defendant had full custody and control of that part of the vessel and the employees working there, and had the sole right and author- ity to control the workmen at Mobile in the work of loading the vessel, and said Defendant-Third Party Plaintiff had no control over said work, and at no time were the men who loaded cargo at Mobile employees of Defendant-Third Party Plaintiff, nor did the Defendant-Third Party Plain- tiff have any authority to control or direct the Mobile longshoremen in the details of the work performed. Vil. Defendant-Third Party Plaintiff alleges that if Plaintiff did in fact sustain injuries proximately caused by any unseaworthy condition of the vessel, which is not admitted but expressly denied, then Defendant-Third Party Plaintiff alleges that such condition resulted from the conduct on the part of Cooper Stevedoring Company, Inc., through its agents, servants and employees, acting within the course and scope of their employment. VI. Defendant-Third Party Plaintiff alleges that if the Plain- tiff sustained any injuries as the result of negligence other than his own, which is not admitted, but is expressly denied, then such negligence was the result of conduct on the part of Cooper Stevedoring Company, Inc., its agents, servants, or [459] employees, acting in the course and scope of their employment, and the officers and crew of the vessel were in no way negligent. PPE OL ORO LLL IO OS Po ENN ee eS a 7 IX. Defendant-Third Party Plaintiff alleges that if the Plain- tiffs injuries resulted from the unseaworthiness of the vessel or the negligence of Defendant-Third Party Plain- tiff, which is not admitted, but is expressly denied, then such unseaworthiness or negligence was proximately caused by the failure of Cooper Stevedoring Company, Inc. to perform its contractual obligations owed Defendant-Third Party Plaintiff, and by reason thereof Cooper Stevedoring Company, Ine. is liable to indemnify Defendant-Third Party Plaintiff for any damages that it may be required to pay because of the Complaints filed herein by Plaintiff, including reasonable attorneys’ fees, court costs and dis- bursements, for all of which it asks recovery against Cooper Stevedoring Company, Inc. WHEREFORE, PREMISES CONSIDERED, Defend- ant-Third Party Plaintiff, Fritz Kopke, prays that citation issue and be served upon the said Third Party Defendant in the form and manner required by law, requiring the Third Party Defendant to appear and answer herein; that upon a final hearing hereof, Plaintiff take nothing against it, and that it be awarded judgment over and against Third Party Defendant for all of its damages, with interest, costs, disbursements and reasonable attorneys’ fees, and have such other and further relief to which it may show itself justly entitled. Royston, Rayzor & Coox By /s/ Gus Scum, Jr. Gus Schill, Jr. 877 San Jacinto Building Houston, Texas 77002 Attorneys for Defendant- Third Party Plaintiff, Fritz Kopke PES AL LITE SARS IESE PENI: GLO TSR ON TN Bae: Sa a a I Bi Sat aaah al . Tipe 8 [290] PRE-TRIAL ORDER (Caption Omitted) The above styled and numbered admiralty cause came on prior to trial for entry of a pre-trial order, and it being made known to the Court that the parties have agreed on an order, the following pre-trial order was entered more than ten (10) days preceding date of trial which is to be held in Houston, Texas before the Honorable John V. Singleton, Jr., Judge, on April 6, 1971. L There is no jurisdictional questions except that third party defendant, Cooper Stevedoring Company is asserting lack of jurisdiction contending it has no agent in this State and has never done business in this State. i. In general, Plaintiff claims that he was working as a long- shoreman employed by Mid-Gulf Stevedores, Inc. aboard the SS KARINA, a vessel owned and operated by Fritz Kopke, Inc. and/or Alcoa Steamship Company, hereinafter referred to as Defendants- [291] Third Party Plaintiffs, said vessel being docked in the Port of Houston on July 2, 1969, which is the date Plaintiff was injured due to the unsea- worthiness of said vessel and the negligence of the De- fendants-Third Party Plaintiffs. Plaintiff contends that the vessel was unseaworthy, and Defendants-Third Party Plain- tiffs were negligent, in requiring Plaintiff to work-on a floor of crates which was not solid and which had holes between the crates. Plaintiff stepped into a hole located between two such crates and fell injuring his back and other parts of his body. As a result of the alleged injuries received, Plaintiff has been treated by Dr. A. C. Madsen, PEGI PIL IES AEE BB EN sige ete * es RECs. 9 Dr. Ed Smith, Dr. T. O. Moore, and Dr. Robert J. Goodall. Plaintiff is claiming damages in the sum of $50,000.00. In general Defendants-Third Party Plaintiffs contend that: 1. That the Defendants, Fritz Kopke, Inc. and/or Alcoa Steamship Company, were not negligent. 2. That the SS KARINA was not unseaworthy. 3. Alternatively, that the negligence, if any, of the Defendants and/or the unseaworthiness of the SS KARINA, if any, did not proximately cause or contribute to Plaintiffs injuries, if any. 4. That Plaintiffs failure to exercise ordinary care for his own safety was a sole cause of the accident made the basis of this suit. 9. That the Plaintiff, Troy M. Sessions, was negligent, and that such negligence caused or contributed to his injuries, if any, and that any award for damages, if any, made to the Plaintiff should be reduced by the percentage to which his own negligence contributed to his injuries. 6. Alternatively, that Plaintiffs injuries, if any, resulted from an unavoidable accident. [292] 7. That Plaintiffs injuries, if any, were proxi- mately caused by the negligent acts and omissions of the two Third Party Defendants, their agents, servants, and employees for whom Defendants-Third Party Plaintiffs are not responsible, and that as a matter of law, such negligence on the part of the Third Party Defendants, their agents, servants, or employees, will entitle the Defendants- 10 Third Party Plaintiffs to recover indemnity from the Third Party Defendants, for all damages costs, attorneys’ fees and disbursements incurred by Defendants-Third Party Plaintiffs. 8. That Plaintiff had pre-existing conditions which caused and/or contributed to his present disability, and that the amount of any award made herein to Plaintiff, if any, should be reduced by the percentage to which such pre-existing physical conditions caused or contributed to his present disability, if any. 9. That the Third Party Defendants have breached their contractual obligations owed to the Defendants-Third Party Plaintiffs and the SS KARINA and that such breach entitles the Defendants-Third Party Plaintiffs to recover full indemnity from the Third Party Defendants, for all damages, costs, disbursements, attorneys’ fees, etc. 10. That the negligence of the Plaintiff, Troy M. Ses- sions, was a proximate cause or contributed to cause his alleged injuries and as a matter of law, such negligence constitutes a breach of the Third Party Defendant, Mid- Gulf Stevedores, Inc., of its contractual obligations to perform its work aboard the SS KARINA with reasonable care and prudence, and in a reasonably safe manner, and that such negligence of the Plaintiff, as a matter of law, entitles the Defendants-Third Party Plaintiffs to recover indemnity from the said Third Party Defendant. [293] 11. That Defendants-Third Party Plaintiffs are entitled to recover indemnity from Third Party Defend- ants for all damages awarded to Plaintiff, in the event Defendants-Third Party Plaintiffs are liable to Plaintiff in any respect and are entitled to further recover indemnity for all costs, disbursements, attorntys fees and expenses incurred in connection with the defense of Plaintiff’s claim 11 irrespective of whether any recovery is made by Plaintiff in this case. In general, Mid-Gulf Stevedores, Inc. and Cooper Steve- doring Company, Inc., hereinafter referred to as Third Party Defendants, contend: Third Party Defendants say that the negligence of the Plaintiff was a sole cause, or in the alternative, a cause of the Plaintiff’s damages, if any. Third Party Defendants further state that the damages, if any, sustained by the Plaintiff were the results of an unavoidable accident. Third Party Defendants deny that they breached any contractual duties of any character owed to Third Party Plaintiffs, and urge that if Plaintiff's injuries were caused by any sub- standard conduct or condition other than his own, that it was that of Third Party Plaintiffs, and that Third Party Defendants did not breach any warranty of workmanlike Service, and that any substandard conduct or condition or action by Third Party Plaintiffs was of such nature as to bar recovery of indemnity. ITI. STIPULATIONS 1. Itis stipulated and agreed that the SS KARINA was owned and operated by Fritz Kopke, Ine. and/or Aleoa Steamship Company at all times material to this lawsuit. 2. It is stipulated and agreed that on July 2, 1969, Plaintiff was employed by Mid-Gulf Stevedores, Inc. as a longshoreman and that he was aboard the SS KARINA at Houston, Texas on J uly 2, 1969, pursuant to the work of his employer. [294] 3. Texas Employers Insurance Association, the compensation carrier for Mid-Gulf Stevedores, Inc. has paid Plaintiff weekly compensation benefits in the amount SSP IE an OREN DEO NE IE ORES AACE A rte 12 OF Siccousns and, further said compensation carrier has paid medical benefits in the amount of @............ , and has a right to recover by way of subrogation for such compensation and medical expenses so paid in accordance with the Long- shoremen’s & Harbor Workers’ Compensation Act from any monies awarded Plaintiff in this cause of action, if any. IV. There are no contested issues of law. 7. EXHIBITS Attorneys agree that exhibits may be introduced into evidence providing opposing counsel are first permitted to inspect such exhibits and before any tender of the exhibit is made for identification or introduction. In this regard, it is stipulated that all hospital records may be admitted without formal proof of their authenticity. Furthermore, any x-rays and laboratory tests made in connection with the examination and treatment of the Plaintiff may be admitted by any party without formal proof of their authenticity or by proof of the technician making them. Also the dock and medical log of the SS KARINA including their English Translations and the ship’s cargo storage plan may be admitted by any party without formal proof as to their authenticity. A. It is anticipated that the following exhibits will be introduced by Plaintiff in the trial of this case. 1. Bill of Dr. Robert J. Goodall in the amount of $590.00. 2. Bills of Memorial Baptist Hospital totaling $718.90. 3. Bills of Memorial Radiology Associates totaling $86.00. 13 [295] 4. Bills of Leidler and Associates (Laboratory Medicine) totaling $32.00. 5. Bill of M.D. Anesthesia in the amount of $78.00. 6. Hospital records of Memorial Baptist Hospital. 7. Income tax records of Troy M. Sessions for the years 1968 through 1970. 8. Portions of U.S. Coast Guard and Safety & Health regulations for longshoring and the storage of cargo. B. It is anticipated that the Defendant may introduce into evidence the following exhibits: 1. Certain hospital and medical records including lab- oratory tests, etc. 2. Plan of the hold of the vessel. 3. The Logs of the SS KARINA. 4. Accident reports of the stevedore. 5. Weekly wage records of Plaintiff. C. Third Party Defendants may offer into evidence the following : 1. Certain medical and hospital records including lab- oratory tests, ete, 2. Accident reports of stevedore. 3. Weekly wage record of Plaintiff. 4. Logs of the SS KARINA. 5. Ship’s cargo storage plan of the hold in question. VI. WITNESSES A. The Plaintiff may call as witnesses the following : The Plaintiff. = on a a i ee ee ee 14 . 2. Tom Harper, the foreman for plaintiff who was al- legedly present. [296] 3. J. R. Hunt, T. G. Gant and W. H. Freeman, co- workers allegedly present. 4. Dr. Robert J. Goodall, a local neurosurgeon who has operated on and most recently seen and treated Plaintiff for his injuries. B. The Defendants may call as witnesses the following: 1. Members of the longshore gang and supervisory per- sonnel of stevedores, as listed. 2. Dr. A. C. Madsen. 3. Dr. Ed Smith. 4. Dr. T. O. Moore. C. The Third Party Defendants may call as witnesses the following: 1. Members of the longshore gang and supervisory per- sonnel of stevedores, as listed. 2. Dr. A. C. Madsen. 3. Dr. Ed Smith. 4. Dr. T. O. Moore. VIL. All discovery has been completed. | viii. All motions and other ancillary matters have been com- pleted. 15 IX. All signed written statements of parties and witnesses contained in the files of Plaintiff, Defendants-Third Party Plaintiffs and Third Party Defendants, if any, have been exchanged and copies of same filed with Court. X. This case will be an admiralty case, therefore no jury is needed. [297] XI. Settlement offers have been exhausted. APPROVED AND ENTRY REQUESTED: (Signatures Omitted] lia: oat a LEO E LO LLL OLN EE OEE Si ae ye spam 16 [509] ORDERED (Caption Omitted) (Filed November 30, 1971) BE IT REMEMBERED that on the 2nd day of Novem- ber, 1971, came on to be heard the above entitled and num- bered cause, and the parties continued to introduce evidence until the 3rd day of November, 1971, when all parties announced in open court that they had rested their cases. Thereupon the Court, after considering the pleadings, and pretrial order, the evidence, and after hearing argument of counsel, stated that he found for the plaintiff and against the defendants are entitled to recover in contribution Co., finding that the plaintiff, Troy M. Sessions, sustained damages in the total sum of $38,679.90, finding also that the defendants are entitled to recover in contribution against Cooper Stevedoring Company, Inc., third-party defendant, the sum of $19,339.95, and further finding that Texas Employers Insurance Association, the compensation carrier for plaintiff’s employer, had paid weekly compensa- tion benefits in the amount of $626.07 and medical benefits in the sum of $361.25, or a total of $987.32, and that Texas Employers Insurance Association is entitled to recover the sum of $987.32 from the sum of money awarded the plaintiff, and it is, therefore, accordingly, ORDERED, ADJUDGED and DECREED that the plain- tiff, Troy M. Sessions, do have and recover of and from the [510] defendants, Fritz Kopke, Inc. and Alcoa Steamship Co., the sum of $38,679.90, and it is, further, ORDERED, ADJUDGED and DECREED that out of such sum of money awarded the plaintiff, Texas Employers Insurance Association is hereby granted a recovery of $987.32, which sum of money the defendants shall pay St EY erSegetee: 17 directly to Texas Employers Insurance Association out of the plaintiff's recovery of $38,679.90, and it is further, ORDERED, ADJUDGED and DECREED that the de- fendants, Fritz Kopke, Inc. and Alcoa Steamship Co., are entitled to contribution against Cooper Stevedoring Com- pany, Inc., third-party defendant, in the sum of $19,339.95. It is further ORDERED, ADJUDGED and DECREED that all costs herein are taxed one-half to the defendants and one-half to the third-party defendant. ENTERED and EXECUTED this 30th day of Novem- ber, 1971. /s/ Joun V. Sincueton, Jr. John V. Singleton, Jr. United States District Judge APPROVED AS TO FORM: [Signatures Omitted] 18 EXHIBIT A In THE United States Court of Appeals For Tue Fiera Crircvuir No. 72-1467 Troy M. Sessions, Plaintiff-Appellee, Vv. Fritz Kopke, Inc., Er At, Defendants-Third Party Plaintiffs-Appellees and Cross Appellants, Vv. Cooper STEVEDORING Company, INc., Third Party Defendant- Appellant and Cross Appellee. AppEats F'rom THE Unrtep States District Court FOR THE SovuTHERN District or TExas (June 1, 1973) Before MORGAN, CLARK and INGRAHAM, Circuit Judges. SRA EET OE — —_ 19 INGRAHAM, Circuit Judge: The SS KARINA, a ves- sel owned and operated by Fritz Kopke, Inc., and under charter to the Alcoa Steamship Company, was loaded with palletized crated cargo by the employees of Cooper Steve- doring Company at Mobile, Alabama. The KARINA de- partted Mobile and arrived at Houston on or about July 2, 1969, where employees of Mid-Gulf Stevedores, Inc., pre- pared to load sacked cargo. T'roy Sessions, a longshoreman employed by Mid-Gulf, was one of the first men to enter the hold of the ship. The Mid-Gulf employees were required to walk atop the previously loaded palletized crates in order to store the cargo they were bringing aboard ship. Sessions stepped into an opening between two crates which was concealed by a covering of corrugated paper, and thereby sustained certain personal injuries. Sessions brought an action against Fritz Kopke and the Alcoa Steamship Company (collectively referred to as the vessel) seeking to recover damages for his injuries. The vessel in turn sought indemnity against Mid-Gulf and Cooper. Prior to trial the vessel compromised and settled its claim against Mid-Gulf, which was then dismissed from the suit. After a trial to the court, sitting without a jury, the vessel was found to be unseaworthy and damages were awarded to the plaintiff in the amount of $38,679.90. No one appeals from this award. The court found that Cooper had negligently stowed the cargo it loaded in Mobile and had thus breached the warranty of workmanlike performance it owed to the vessel. Denying the vessel’s claim for a full indemnity, the court awarded the vessel contribution from Cooper as a joint tort-feasor for 30% of the damages. — AE A ION TES PETER OMICS FM 05 20 Cooper appeals. The vessel cross-appeals, contending that there was no basis for the trial court’s denial of its claim to full indemnity from Cooper. While our appel- late review of this case is made somewhat difficult by the fact that neither the vessel nor Cooper requested that the trial court make formal findings of fact or conclusions of law which specifically dealt with the various rights and liabilities of the parties, nevertheless, we find ample basis for this holding in the oral decision announced by the judge at the conclusion of the case. Fairly read, the holding does make it clear that the court considered the vessel’s con- duct precluded its full recovery on the indemnity claim because it failed to fulfill its primary responsibility under its arrangement with Cooper to assure that some type of dunnage was placed on top of the cargo. On the record before us we cannot conclude that this finding was clearly erroneous. On its appeal Cooper Stevedoring asserts that the trial court’s award of contribution in a non-collision maritime cast is in direct conflict with the Supreme Court’s decisions in Halcyon Lanes, et al v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952), and Atlantic Coast Inne R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340 (1972). Halcyon, supra, held that there was no right to contribu- tion between a shipowner and a shoreside contractor who are joint tort-feasors in a case involving injuries to an employee of the contractor while engaged in repair work on a ship. The apparent prohibition against contribution in a non-collision maritime case has been held inapplicable where the joint tort feasor against whom contribution is sought is not immune from tort liability by statute. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir., 1970), cert. den. 400 U.S. 993 (1971); Watz v. Zapata Offshore Company, 431 F.2d 100 (5th Cir., 1970); In re ELLE PESOS FE OO SE ILS eo ee we BO ORE" ere. — 21 Seaboard Shipping, 449 F.2d 132 (2nd Cir., 1971), cert. den. 406 U.S. 949 (1972). In the present case Sessions, in addition to suing the vessel, could have proceeded directly against Cooper Stevedoring as Cooper was not his employer and, there- fore, not shielded by the limited liability of the Long- shoremen and Harbor Workers Act. The Supreme Court’s per curiam affirmance of the Atlantic case, supra, in no way necessitates a reexamination of our prior holdings. An examination of the district court’s opinion in that case (reported at 315 F.Supp. 357 [1970]) indicates that the employer against whom contribution was sought enjoyed statutorily imposed limited liability and, therefore, would have fallen without our Horton-Watz exception to the Halcyon rule. Finding both parties’ additional assertions of error without merit, we therefore AFFIRM the judgment of the district court. AFFIRMED. SS ALE EE ELON TEENS EEE ET LOND I I PP IO 22 In THE United States Court of Appeals For Tue Firrxs Crecuir No. 72-1467 ON PETITION FOR REHEARING (August 6, 1973) Before MORGAN, CLARK and INGRAHAM, Circuit Judges. INGRAHAM, Circuit Judge: The court, having received a petition for rehearing in the above entitled and numbered cause, modifies its opinion of June 1, 1973, by deleting the eighth paragraph thereof. In its place the court substitutes the following paragraph: The Supreme Court’s per curiam affirmance of the Atlantic case, supra, does not necessitate a reexamina- tion of our prior decisions. It is unclear from the dis- trict court’s opinion, 315 F.Supp. 357 (S.D.N.Y., 1970), as well as from the Second Circuit’s affirmance thereof, 23 442 F.2d 357 (1971), whether our Horton-Watz excep- tion to the Halcyon rule was even applicable under the facts of Atlantic, Moreover, neither court directly ques- tioned the decision$ in Horton and Watz. In these cir- cumstances and absent a reference in the Supreme Court’s short per curiam opinion to these decisions, we do not read Atlantic as silently overruling Horton and Watz. In all other respects the petition for rehearing is DE- NIED. 24 TESTIMONY [14] TROY M. SESSIONS, the Plaintiff, was called as a witness in his own behalf and, having been first duly sworn, was examined and testi- fied upon his oath as follows: DIRECT EXAMINATION By Mr. Brock: [15] Q. By Mr. Brock) State your name, please, sir. A. Troy Marvin Sessions. [16] Where do you live, Mr. Sessions? A. 9409 Chester- Q. In Houston? A. Houston, Texas. Q. How old are you? A. Fifty-four years old. Q. When did you turn fifty-four? A. April 21st, 1971. Q. What extent of education have you had? A. High School education. Q. Did you finish High School? A. Yes, sir, I finished High School. Q. Where did you finish? A. Rusk, Texas. Q. In what year? A. 1940. [20] Q. Now, with respect to the types of — strike that. On what day was it that you got injured, that’s made the basis of this suit? A. July the 2nd, 1969. Q. And what ship were you on? A. I was on the 25 “S.S.” — I believe that is pronounced “Karuda.” “Karuda.” I believe that’s the way it’s pronounced. Q. The “S.S. Karina”? SER SE! ? TOY, EE I Ne I Le 71 Q. And you went down a ladder that was in the end of the hatch where the crates were already loaded? A. That’s right. Q. And you walked across the crates to go into the other end of the hatch where you initially, or you started loading these bags of grits? A. That’s right. Q. Now, isn’t it true that when you walked across the crates the first time, that they appeared to be level and loaded next to each other in a proper manner? A. Yes. From my observation, that they were tight. [205] We didn’t know no holes in those crates. Q. All right. So when you first went down there, the crates looked good? A. That’s right. Q. As far as walking on top of them? A. That’s right. Q. And you saw this piece of paper that was already down there? A. That’s right. Q. All right. There’s ng question in your mind that the —none of the Houston Longshoremen put that piece of white paper over that hole? A. No, no, because Houston, we don’t use that type of paper that way. We don’t use it. Q. That was a type of separation paper, though, wasn’t it? A. That’s right, it were. Q. But it just was not the type that you were using that day? A. That’s right. Q. All right. Now, did this piece of paper completely cover up the hole that Mr. Sessions stepped in? A. Yes. Mr. Sessions, when he stepped on that paper, he fell in the hole. But if you looked at it, [206] you won’t know no hole is in that paper. Q. You couldn’t see it? A. No, you couldn’t see it. Q.: Because the paper covered it up? A. No, we couldn’t see it. Q. And there was nothing to indicate that there was a hole under there? A. No, nothing. Q. And this was just a hole or space between two crates, ELIOT ELL ALA LL OLE LEENA SEEN LP LID APs aE I ON = ? ar 72 wasn’t it? A. Yes. It was a space between two crates, but how big, I don’t know. » . Q. You had plenty of light to see by? A. Beg your “pardon? Q.. You had plenty of light to see by? A. Oh, yes, plenty of light to see. Q. Mr. Thomas— A. Uh-hum? Q. —is it normally the longshoremen’s job to put down separation paper when you are loading or unloading cargo? A. That is our job, to put down separation paper. Q. It’s not the seamen’s job on a ship to put down the separation paper? A. No, definitely not. [207] Q. So if there’s any separation paper that was put on top of this cargo, would you expect it was done by longshoremen— : MR. HARMON: Your Honor, I object to that. He couldn’t possibly know that, as to who put the piece of paper there. THE COURT: [I'll accept his testimony that long- shoremen usually put down separation paper and that that’s all he knows. Q. (By Mr. Smith) Have you ever seen a seaman putting down separation paper? A. Never in my life. Q. Mr. Thomas, how much money did you report to Uncle Sam that you earned last year? A. Close to $12,000. Q. $12,000? THE COURT: Close to how much? THE WITNESS: Close to Twelve Thousand. Q. (By Mr. Smith) And you have an A rating? A. That’s right. MR. SMITH: I pass the witness, Your Honor. 73 [208] CROSS EXAMINATION By Mr. Harmon: Q. Mr. Thomas— THE COURT: Was that all for longshoring? THE WITNESS: That’s all. That’s all I do is long- shoring. Q. (By Mr. Harmon) Mr. Thomas, did you have occa- sion to give a written statement sometime after this acci- dent happened to investigators for an insurance company? A. I did. MR. HARMON: Do you have a copy of the state- ment, by chance? MR. SMITH: Yes, I have a copy. MR. HARMON: Can I see a copy of it, please? THE COURT: I thought you said you all ex- changed all statements on the pretrial order. MR. SMITH: The pretrial order was entered be- fore I ever got in the case, Your Honor. I didn’t know what had been done. THE COURT: If you have a copy [209] of the statement, show it to him. The pretrial order says: All signed, written state- ments of parties and witnesses contained in the files of Plaintiff, Defendant, Third-Party Plaintiffs, Third Party Defendants, if any, have been exchanged and copies of same filed with the Court. That’s what your pretrial order says. MR. HARMON: Judge, we were kind of ina hurry to get the pretrial order filed, as I recall. There was some indication that either the case might be dismissed SERIE Pee EOE NRE IT ( 74 or it would be a default judgment entered if we didn’t get it filed very promptly, so Mr. Brock very quickly called me and I think \Bud Cecil to get us to sign the thing and so it was, I think, signed and returned to the Court when perhaps we hadn’t actually done some of the things we said there. THE COURT: Well, is it your statement that I should hold the attorneys in contempt for false swear- ing? [210] MR. HARMON: Oh, no, no, particularly since I signed it myself. MR. BROCK: Mr. Thomas, you never did give me a statement, did you? THE WITNESS: No. MR. BROCK: All right. Q. (By Mr. Harmon) Would you look at the statement, please, Mr. Thomas, and see if that is your signature there? A. That’s my signature. Q. And you see the last line above your signature, it says, “I’ve read the above statement. It is true and correct to the best of my knowledge,” and then apparently you swore to it before some notary public? A. That is correct. Q. Now, in this statement here you say you’ve been — it gives your home address and the number of your local, that you’ve been longshoring for fifteen years. It says, “I have been asked what I know about the acci- dent that happened to Troy Sessions.” You said, “I recall the accident.” This statement you gave January 29th, 1970. That would be a matter of about six months [211] after the accident. A. I don’t know how long it had been, because I didn’t keep up with no dates. Se eR a eee eee or rg ees pa a are eee Be. a 75 Q. I understand. I think Mr. Sessions said the acci- dent happened on the 2nd of July of 1969, so that would be about six months later. Your statement Was given on January 29th, 1970. A. And you’re saying that would be six months later? Q. Yes. A. I'll have to get a pencil and have some- body to count that up for me. THE COURT: That’s about six months. Q. (By Mr. Harmon) Okay. Roughly six months. You say, “I recall the accident. We were working at Man- chester docks. We were charging grits.” You say, “I am not sure what time we started to work. It had to be a 10:00 a.m. gang or a 1:00 p.m. gang. I do not recall what time the accident happened. I do not recall the name of the ship. Troy was injured in the lower hold of the, I do not recall the hatch number, inshore side.” You said, “He was coming out to land his load. We were setting loads on the inshore [212] side then the next on the offshore side. I was working across from Troy. He was on the inshore side and I was on the offshore side. Troy caught hold of the bridles to help land his load and stepped into this hole.” Now, is that the way you recall it? You say, “This hold was boxes of cargo. These boxes of cargo, we did not load. We were only loading grits. These boxes of cargo was already on board when we arrived to work. We noticed the breaks in the cargo and wondered why they had been Stored this way.” Now, is that correct, that you all had noticed some Separation between these boxes? A. N. 0, we didn’t — no, we didn’t observe no — THE COURT: I can’t hear you, Mr. Thomas. OG ee NT ER ee ee re ne al pe eD ; e 8 WE RT 76 A. No, we didn’t observe no breaks. The cargo looked like it looked good. Q. (By Mr. Harmon) "hy in this statement did you say you had noticed the breaks in the cargo if that weren’t true? A. Well, it had been a long time and my mind hadn’t been refreshed on it, what I mean. It had been a long time and I had never thought about it. [213] and after I begin to think about it, I thought about it, that it was not cracks in it. Q. All right. You say, “I do not know whether or not anyone reported this breaks in the cargo to anyone. There was not any covering over this cargo.” Is that correct? A. In the hold all the cargo wasn’t covered up. It was just a strip of paper across that cargo. All the boxes wasn’t covered up. Q. You say, “when you see these holes you try to work around them. If all holes were checked in the cargo you could not get any work done. There was breaks in the cargo all over the lower hold. This hole was about seven inches wide. From where I was standing I could not tell how deep it was.” Are you saying here that the hole was seven inches wide? A. Got to be something wrong there because I — in other words, I didn’t measure that hole. Got to be some- thing wrong there, seven inches. Q. See the statement— A. See, I don’t have but a very little schooling. I have very little schooling. I came up in the [214] hard times and I don’t read too well. Q. Well, can you read this? A. No, I can’t. I can read some of the words, but I can’t read all of the words, see. See, I come up the hard way. Q. Well, can you read what this says right here? A. I see “if,” and what this word is, I wouldn’t know, see. I can read some words, but some words I cannot. 17 Q. Well, how much of this last sentence here can you read? A. And it took time and— well, now, what this word is, I don’t know. I had to be hung. In other words, I don’t read. I had a hard time coming along. I had to work. Small words like that, but I don’t know what this word is here. Like that, I don’t know what that means. MR. HARMON: We would like to have that marked, please. Q. (By Mr. Harmon) Mr. Thomas, how big was this piece of white paper?’ A. It was the size —it was ample size, the size of a piece of paper that would come off of a roll. Q. How wide? Two feet wide? A. I don’t know how wide, but it’s an average roll. [215] You know, the aver- age. If you know anything about longshoring, you know how long paper comes that you make breaks with. Q. Well, was it as wide as this little green blackboard? A. I don’t know. I didn’t measure, but it’s just a common roll of paper that you buy. Q. Hold up your hands and indicate how wide you would say. A. You want me to tell a story, which I’m not. Q. No— A. No. You just try to confuse me. Q. No, I don’t want to confuse you. A. You see, I don’t know how long a roll of paper is. Q. Can you hold up your hand? A. If I hold up my hand, I'll be giving the indication that I do, but I don’t know how long a roll of paper is. It come different lengths and I didn’t measure that paper to see what width it were. Q. Was this the only piece of white paper that you saw down there‘in that hold? A. The only one I re- member. Q. Okay. Now, you saw the piece of paper before Mr. Sessions stepped on it? [216] A. We all saw that paper there. 78 Q. But nobody went over and picked the paper up? A. No. You don’t go around picking up paper on ships, seeing what’s under the cargo. You don’t do those kind of things. If you have no way of knowing, when you see a piece of paper you don’t be raising the paper. You don’t get working on the ship. You get run off a ship looking under the paper. Q. You realize that there may be spaces between boxes of cargo on a ship, do you not? A. Yes, It be’s breaks in cargo. Q. All right. And you therefore know that if there is a piece of paper laying down on top of boxed cargo that you're walking around on, you try not to walk on the paper because you can’t tell whether there might be a break under- neath it, isn’t that true? A. You don’t walk on the paper because you don’t know what’s under there. You have no reason to know what’s under there. _Q. And that’s why I’m saying you don’t walk on the paper because there might be a space under it, isn’t that right? A. No. You walk on — you see some paper spread- ed [217] out, you walk on it because you figure the cargo wouldn’t be — you wouldn’t figure there would be no hole under there. Anybody would do that. When you work, you don’t be looking for holes. When the paper is down, you don’t look for holes. You look for a place to store your cargo. Q. You hadn’t stepped on the paper, had you? A. I wasn’t on that side. Q. Now, do you happen to recall the fact that the deck was wet where somebody, had apparently washed? I’m talk- ing about the deck where the bags were being loaded in the forward end of the hatch. Do you remember? A. I haven’t seen no water. a a a Ee LG SLELD AS E Sie AOS EL 79 Q. You don’t remember that? A. Don’t remember no water. MR. HARMON: I believe that’s all. THE COURT: Any further questions from Mr. Thomas? MR. BROCK: I have one. THE COURT: All right. [218] REDIRECT EXAMINATION By Mr. Brock: Q. Mr. Thomas, in connection with the statement which has been marked Third Party Defendant’s Exhibit No. 2, did you or not read that before you signed it? A. I read what I could of it before I signed it. Q. But you didn’t read it all? A. No, because, like I explained to you, in other words, I had to work when I was coming up, take care of my sisters, and I didn’t get much education, and some of the words I can read and some of them I couldn’t. Q. You gave this statement to a representative of Texas Employers Insurance Association, didn’t you? A. That’s right. Q. And in that connection you were relying on him to put it down the way you told him? A. Correct. Q. Do you recall whether or not you told the repre- sentative of Texas Employers Insurance Association that Mr. Sessions stepped on some white paper that was cov- ering a hole? Do you recall whether or not you told him that? [219] A. Let me think. Yes, I think I told him that. [233] TOM HOCKER, called as a witness by the Plaintiff and, having been first duly sworn, was examined and testified upon his oath as follows: DIRECT EXAMINATION By Mr. Brock: Q. State your name, please, sir. A. Thomas Hocker. [234] THE COURT: He is a foreman? He was the foreman? MR. BROCK: Yes, sir. THE COURT: Okay. Q. (By Mr. Brock) Are you a member of Local 872? A. Iam. s = e ‘ [237] Q. All right. Now, on July 2nd, 1969, is it a fact that you were or were not the gang foreman on the “S.S. Karina”? A. I was. Q. In what hatch was your gang working? A. No.1. Q. Was Troy Sessions a part of your gang? [238] A. He was. Q. As gang foreman, did you make the assignments as to where each man in the gang would work? A. Yes, I do. Q. And where was Troy Sessions assigned to work? A. In the hold. Q. Who, if you know, was Troy Sessions’ working partner? A. Guy Thomas. PEE TENET IOOLLE LL LENCO Ga Ig At EGRET ee OPI Oo 81 Q. Guy Thomas. Now, of course, we’re talking about on July the 2nd, 19692 A. That’s right. Q. That was his working partner on that day. Is that correct, sir? A. (Nodding.) Q. You'll have to answer out. A. That’s correct. But, you see, I has eight men in the hold so they work with one another, but him and guy was supposed to be partners. [239] Q. Thank you, At the Union Hall you have a shipping station, do you not? A. That’s right. Q. And you were the gang foreman who had been assigned to pick up a gang for the 10:00 o’clock call? A. I was. Q. And you went to the shaping station and from the people assembled in the shaping station you picked them up on the basis of their seniority? A. That’s right. Q. And among those was Troy Sessions and Guy Thomas? A. You're right. Q. At the time you picked those men up you knew, and everybody else knew who inquired, the nature of ‘the cargo that was going to be worked on the “Karina”? A. Let me have that again, please? oF Q. When you were assigned as the gang foreman, you knew, from the information furnished the Local, [240] the kind and character of cargo? A. Not at the time. I didn’t know until after I got to the dock what we was going to work. Q. All right. You found out the kind of cargo when you got down to the dock? A. That’s right. Q. So would it also follow that none of the longshore- men knew what cargo you were going to work until you got to the dock? A. We do not know until we get to the dock what we are going to work. 82 Q. All right. When there is an order put in for a seventeen-man gang, including the gang foreman, do you know that it is going to be general cargo? A. Yes. That’s why we classify the men. We know it’s going to be seats cargo by the amount of men they order. Q. -All right. In other words, if they order a five-man gang, you know that it is going to be another kind of cargo? A. Yes. Q. But when they order | a seventeen-man gang, you know it is going to be general cargo? A. That’s right. Q. Is that right, sir? [241] A. That’s right. Q. Now, when you got down to the “S.S. Karina” at 10:00 were the hatches covered or were they open? A. It. was covered. We uncovered it, Q. You uncovered the hatch, the hatch No.1? A. Yes. Q. What duty and responsibility does the gang foreman have when you open up and uncover a hatch? A. Well, the gang foreman is supposed to look in the hatch and see what kind of cargo is already in there, see, and where we’re going to work at. The end we worked on didn’t have any cargo. The cargo is in the after end. So I goes down there and look at it and tell my mens how high to bring it up, how to bring it up, and if we going back on that cargo, I tell them we going back on top of this cargo. Q. All right. Now, as I understand, when you uncovered the hatch, and if you assume that this little dotted square that I have here is the hatch opening and here is the ladder, we'll say, you actually went on the “Karina,” walked to the hatch, opened — saw to it that your people [242] opened the hatch cover, and then you went down the hatch? A. And checked it. Q. And you checked it. And when you got down there, as I understood your testimony, the aft end of this par- ticular Hatch No. 1 was already loaded with cargo? A. Had cargo in it. It wasn’t loaded. POG LE PIETER I AONE we OE . _ . ro °° 83 Q. The aft end? A. The aft end had cargo there but it wasn’t loaded. THE COURT: What do you mean — he means it was not full, I assume? THE WITNESS: That’s right. Q. (By Mr. Brock) The forward end— A. Didn’t have any in it. Q. —Didn’t have any? A. That’s right. Q. And how many layers or tiers did the aft end have? A. I think it was one high. Q. One high. In other words, if this is the floor— A. Yes. Q. —vyou had one hight A. Yes, sir. Q. Is that correct? [243] A. Yes, that’s right. Q. And what kind of cargo did it appear to be? A. Well, it was palletized cargo. Q. All right. A. I think it was rocks or bricks or something. I don’t know exactly what kind it is, it’s been so long now. Q. You think it was— A. Rocks or bricks or some- thing, and palletized. I don’t know what it was. Q. All right. A. But I know it was palletized. Q. Now, in connection with that particular cargo, let me just hand you all the photographs that I have and ask you to look at them in order that we may be of whatever help we can to the Court. : I have handed you seven photographs, and I ask you, in connection with those seven, do any one of those photo- graphs appear to be the kind of cargo that was already in hatch No. 1 when you started to work? A. The crates looked about the same height, but I don’t know what kind of cargo it is. POF eR mE ee ae ee TS RY Se eas 84 o Q. Well, my question may have just been miskeading. You said you had crated cargo in there? [244] A. Yes. The crates looked the same. THE COURT: I can’t hear you, Mr. Hocker. You'll have to speak up so I can hear you, sir. THE WITNESS: I say the crates look kind of like it, but I don’t know whether it’s the same height or what? But that’s the way it be. Q. (By Mr. Brock) All right. The crates looked like they were the same height? A. Yes. Q. Now, my question is, did you notice or observe whether the crates were banded? A. I didn’t look that close to them to see whether they was banded. Q. Did you notice whether or not the crates were on pallets? A. Stpposed to be. Yes, they were on pallets where a forklift go under them, a forklift pick them up. - You couldn’t handle them with hands. Q. So far as you know, it was crated cargo that was on pallets? Is that correct? A. That’s right. Q. When you went down in there did you notice or observe whether or not any of the —strike that. [245] When you went into Hatch No. 1, did you notice whether or not the crates were secured by chocking, by cable, by chain or by anything else? A. No, the crates weren’t secured. : Q. They were not secured? A. No, sir. Q. Did you notice whether or not, with respect to the particular crates in question, whether there was any paper, cardboard, corrugated board, or anything else on top of the crates? A. At one place in the wing where I see the paper, some white paper, I don’t know. I don’t know whether they had it up there for separation paper or what, but it was spread about ten feet in the wing, down in the wing. ne LO TE AER OLE MOLE Be we Wj ee oe So oo 85 Q. On the inshore or offshore side, if you recall? A. I disremember whether it was on the starboard or port. Q. All right. In any event, you saw some white paper? A. Yes. Q. Did it appear to be like butcher paper, only white, or did it appear to be like corrugated paper? A. It could have been white corrugated paper. [246] A. It could have been. Q. Could have been? A. Yes, But, see, we don’t use that kind of paper here. Q. Do they use white butcher paper here? A. We use brown. Q. You use brown butcher paper? A. At the time, they was using brown paper. Q. As I believe you testified, you saw this paper which was about a ten-foot square? A. Straight down the wing. Q. Well, it was about ten foot long? A. Yes. Q. How wide? A. Oh, I'll say three feet or four. Q. Now, if this is the inshore side and this is the offshore —in other words, the starboard and the port side —and if this is the aft end of Hatch No. 1, where would the paper have been? over here, here, or where- abouts? A. I disremember now which side it was on. It was on the side. Q. After you found that paper, did you go over there and pick itup— A. No. [247] Q. —and look in underneath? A. No, no, We don’t do that. Q. You don’t do it? A. No. Q. Why! A. Why? Because if the paper is already down, my orders is to leave it down and put cargo on the top of it and put my paper down as I come out. Q. Is that the orders you were given by the walking foreman? A. That’s right. That’s all of them we do that all the time. We don’t ever pick up paper. sanieatll ieee iin ats * 86 Q. And is that what you instructed your gang to do? A. That’s right. They don’t pick it up. Q. When you saw that white paper in there, did you say anything to anybody in the ship’s crew about it? A. No. Q. Did you say anything to your walking foreman about it? A. No. Q. When you went down in there to check the con- dition of the cargo, did it appear to you to be level across the top? [248] A. It did. Q. So far as you determined by your investigation, did you determine whether or not there were any breaks or openings in the cargo? . EU DT Re EEE AT ta mt re -- mete Ro er — ere 167 MR. OLDHAM: Twenty-five to fifty, your Honor. THE COURT: $50 more medical. And whatever that adds up to. There is a lien in this case of Texas Employers’ Insur- ance Company of $626.07 plus $361.25. What does that add up to? MR. SMITH: Give men the figures again. [421] THE COURT: Your Pretrial Order says $626.07 and $361.25. Whatever that total is will have to come off of the total of what we have added up here. I have not added up that total.” MR. OLDHAM: $987.32. THE COURT: How much? MR. OLDHAM: $987.32. THE COURT: What does the medical come to? MR. BROCK: That’s the total comp and medical, isn’t it? MR. OLDHAM: Yes. That is the total of both. THE COURT: What do the medical bills add up to? I have not added them up. I have not added up $590 and those. I haven’t added those up. MR. OLDHAM: Fifteen fifty-four ninety, I believe, your Honor. THE COURT: Fifteen fifty-four ninety? MR. OLDHAM: Yes, your Honor. THE COURT: If fifteen fifty-four ninety is the total medical —is that the total medical? —I find no future medical. 0 REGO LE ALLEN AE LDL ELIOT LOL ELST LE FOIE IIL LD 168 [422] MR. BROCK: I made no proof on it. THE COURT: Is fifteen fifty-four ninety the amount? Do you want to agree on that? Is that the medical? MR. OLDHAM: That’s the figure I got, adding up the figures you read out, sir. MR. BROCK: Was how much? THE COURT: Fifteen fifty-four ninety. So my caleu- lations come to $38,679.90 and lien would have to come off of that or they get a judgment, Texas Employers’ get a judgment for the lien, do they not, nine hundred and some- thing? _ Okay. Sould I find anything else? MR. SMITH: I think you should make a finding that Cooper breached its warranty of workmanlike service to the vessel owner by negligently stowing the — THE COURT: Well, if I need to say that —I have said that they negligently stowed it, so that negligent stowage amounted to as a breach of their obligation to — MR. SMITH: Stow the cargo in a workmanlike manner, which breaches the warranty of workmanlike service. [423] THE COURT: Okay. The warranty of workman- like service. And that will constitute the findings of fact and conclusions of law and the judgment of this Court unless somebody says I have to make other findings. Now, what i will do, if anyone is going to appeal this ease, I would request and order them to let me know, so that I can write this up in the form of a memorandum opinion. I will try not to make, if that happens, any addi- tional findings that I have not made here, but I will dress it up in language in the form of a memorandum opinion and order. ee, ee 169 MR. HARMON: Judge, I would like to ask Mrs. Gavales, when she gets an opportunity, to write this up and let me have an opportunity to look at it. I have been trying to follow it very carefully and I think the Court has covered most points, but I would like to look at the Court’s findings here. THE COURT: All right. Are there any other findings that anybody thinks I ought to make that I have not made, that you can think of? MR. HARMON: Judge, in this regard, [424] I say I don’t know, in view of the Court’s findings about the paper and the fact that the Court was not favorable to find tha Cooper Stevedoring Company — . THE COURT: I can’t find who put the paper where it is. All I can find is the paper was there. MR. HARMON: I understand. The shipowner failed in his burden to proving that we put it there. This is why I say before I know I am going to want any other findings in regard to this, I want to look at this. THE COURT: If anybody wants any other findings, let me know what it is. If you want to appeal, I want the opportunity —I don’t want any mistake about it, because I got very mad in a case where I said this and I did this and the lawyers appealed it and I didn’t know it. And what I call the idiotic Court of Appeals — and I'll say it on the record — reversed me saying I didn’t make findings of fact and conclusions of law. And I sated in the transcript that I was making findings of fact and conclusions of law and read it off, just like I did now, and they sent it back to me to make findings of fact and [425] conclusions of law. So I got hot. I got hot with the lawyers not telling me they were going to appeal it, because the record is clear in SATE MSL Rs RT SO a Rn SNR ata on SS Peer ~~ — 170 the case. It said if they wanted to appeal it, let me know and I was going to dress up what I was going to do. Instead, we wasted a lot of time because, apparently, the Fifth Circuit didn’t read it/or if they read it, I didn’t spell it out like, you know, I’m doing this in accordance with Rule 52(A). MR. HARMON: Yes, sir. THE COURT: Okay. MR. SMITH: Can we have an opportunity to review your findings? THE COURT: Yes, sir. All right. We will stand ad- journed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0294%3A1. Public record. Not legal advice.