Petition for a Writ of Certiorari — Bornhurst v. United States

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: FES 5 1948

CRARLIS CLMORE GROPLEY

Shean

SUPREME COURT OF THE UNIT

OCTOBER TERM, 1947

No. 574

CLYDE BURDETTE BORNHURST, a Minor, sy ISABEL

BORNHURST, His Guarpian ap Litem,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS,

NINTH CIRCUIT, AND BRIEF IN SUPPORT

THEREOF.

Kweianp C. Tanner,

Counsel for Petitioners.

Epwarp J. Ciark,

Dee B. Tanner,

Of Counsel.

= eine J

pW) APE

INDEX \

Sussect InpEex

Petition for writ of certiorari.....................

Summary statement of matter involved........

Jurisdictional statement .....................

Opinion of the Court below ...................

SN SIs 2 Wd. viw.s swmbneia aes

Reasons relied on for allowance of writ.........

ee ae eee ee ok aN) 6 he Riad

Brief te support of petition .... ..... ccs. cca ceas:

Opinions of the Courts below..................

Grounds on which jurisdiction of Supreme Court

of the United States is invoked.............. 12

IIE Wa 6 cs gh Gas Koss vege vine 13

Beceem OF GrPerS.. ... 2... 15

TES RE Sn ae ers Wee 17

I. A seaman, while off duty aboard ship,

does not assume the risk of injury due

to unseaworthy appliance .......... 17

II. The formal findings of the District Court

affirmed by the Cireuit Court of Ap-

peals, Ninth Circuit, do not correctly

represent the views of those courts

with respect to the issues of unsea-

worthiness, negligence and damages,

the nub of the rulings by each court

being that the petitioner was not act-

ing within the scope of his employ-

ment while off duty ................ 23

AGRIC SE Mie SS isi: REE Ine a 27

=e Oonone

—

TaB_e or Cases CITED

Adams v. American President Line (1944), 23 Cal.

PASS a aan AI are eae ee SG aliigi v-v os 22

Aguilar v. Standard Oil Co. (1943), 318 U. S. 724 3,9, 17,19

Arizona v. Anelich (1936), 298 U.S.110............ 8

Beadle v. Spencer (1936), 298 U.S. 124............. 8

H. A. Scandrett (CCA-2 1937), 87 F. (2d) 708... .. 8, 19, 20

Jesionowski v. Boston and Maine Ry. (1947), — U.S.

IN ioe Cccc ily Saya hae Khan waa 27

—4655

li INDEX

Page

Krey v. U.S.A. (CCA-2, 1941), 123 F. (2d) 1008. ... 3,8, 20

Kyriakos v. Goulandris (CCA-2, 1945), 151 F. (2d) |

BOR os. isch ke eanes ee ca res te 3, 8, 21 |

Langnes v. Green (1931), 282 U.S. 531............. 26

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

8, 11, 12, 26

Meyer v. Dollar S.S. Line (CCA-9, 1931), 49 F.

RPE Oh CEP Pe ine Oa eee Pers 20

Northwestern Pac. Ry. Co. v. Fiedler (CCA-9, 1931),

52 F. (2d) 400 (cert. den. 305 U. S. 605)........... 17

Nowery v. Smith (E.D. Pa. 1946), 69 Fed. Supp. 755. . 20

Radoveic v. Prine Pavle (S.D. N.Y., 1942), 45 Fed.

IR RS be ui ee or ae ee a es Peake ee oe 21

Seas Shipping Co. v. Sieracki, 328 U.S. 85.......... 12, 26

Socony-Vacuum Oil Co. v. Smith (1939), 305 U. S.

EE ck Sock ee ale ee saa 2, 3, 7, 8, 9, 13, 17, 18, 22

States S.S.Co. v. Berglann (CCA-9, 1930), 41 F. (2d)

Oks Pa coe cae es es eee as x Sas 3, 9, 20

Sundberg v. Washington Fish and Oyster Co. (CCA-9,

te BE ae eee ee 3, 9, 20

The Alpha (E.D. Pa. 1942), 44 Fed. Supp. 809...... 20

Tiller v. Atlantic Coast Line Ry. Co. (1943), 318

Wp a ie Sangeet bre la es hans va esha 8

United Dredging Co. v. Lindberg (CCA-5, 1927), 18

F. (2d) 453 (cert. den. 274 U. S. 759)......... ... 3, 8, 20

Whiting-Mead Co.,v. Industrial Acc. Comm. (1918),

ee, CE ee I BE 6s ek cee Sb ac cea ena 19

Wong Bar v. Suburban Petroleum Transport, Inc.

(COB-S; 1968), 100 ©. (6) 7... 2... ee 20

Zurich General Accident Co. v. Brunson (CCA-9,

SN WE A a re co ow wc ek

Statutes Crrep

Federal Employers Liability Act (Apr. 22, 1908, c.

149, See. 1, 3, 4, 35 Stat. 65, 66; Aug. 11, 1939, ¢.

685, Sec. 1, 53 Stat. 1404, Title 45 U.S.C.A. See. 51,

RR er aia ir cess Cae eno 6, 7, 12

Jones Act (June 5, 1920, C. 250, Sec. 33, 41 Stat. 1007,

Title 46 U.S.C.A. Sec. 688)................... New D6

Judicial Code, Sec. 240 (a) as amended, Title 28

RE ee cocks uan sc carers

= a

SUPREME COUAT OF THE UNITED STATES

OCTOBER TERM, 1947 ;

No. 574

CLYDE BURDETTE BORNHURST, « Mrwnor, sy ISABEL

BORNHURST, His Guarpian ap Litem,

Pa Petitioner,

THE UNITED STATES OF AMERICA,

Respondent

UNITED STATES CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI TO THE

FOR THE NINTH CIRCUIT.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The petition of Clyde Burdette Bornhurst, (by Isabel

Bornhurst, his Guardian ad Litem) seaman, for a writ of

certiorari to review a decree of the Circuit Court of Appeals

for the Ninth Circuit, entered on the 4th day of December,

1947, affirming a judgment dismissing his action entered

March 3, 1947 by the District Court of the United States

for the Southern District of California, Central Division,

respectfully shows:

Summary Statement of Matter Involved

This petition squarely presents the question reserved

in the concluding paragraph of the opinion of this court

——— - 627 Se AE DE See SEE

POL ALTOID

—y

in Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, as to the

shipowner’s duty with respect to maintaining a seaworthy

vessel for seamen not actually working.

The United States Circuit Court of Appeals for the Ninth

Circuit, contrary to the provisions of Title 46 U.S. C. A,,

Sec. 688, and contrary to the admiralty law governing sea-

worthiness, denied to a seaman recovery for injuries re-

ceived aboard his vessel, on the narrow ground that he

‘‘assumed the risk’’ of a dangerous, negligent and unsea-

worthy condition because he was not actually working

at the time of his injury.

The petitioner was one of three wipers aboard the vessel

and immediately before receiving the injury had been en-

gaged, pursuant to orders, in cleaning the quarters of the

engine room crew in a forecastle having a temperature of

above 100 degrees. During a breathing or cooling off period

petitioner idly rested his hands on a tank top coaming

and received serious injuries to his hands through the

sudden falling of the tank top weighing some 600 pounds

upon his hands. The Circuit Court of Appeals, affirming

-the lower court, held that he alone was negligent in that

he ‘‘voluntarily and not in the performance of any work

or duty which he was required to do or perform, placed

his hands on the edge of the tank. * * * Said acts on

the part of libelant were prompted solely and exclusively

by the libelant’s curiosity. * * * The libelant had no

duties of any kind to perform at or near the tank top,

and if the libelant had continued in the performance of his

regular duties he would not have been injured”’ (R., p. 219).

This conclusion of the Circuit Court of Appeals adopted

the conclusion of the District Judge who tried the case to

the effect that if the petitioner ‘‘in the course of his duties,

had to go over and put his hands on the edge of that tank

top and lean over and look into it, then * * * there

is no doubt but what he would be entitled to recover”’ (R.,

p. 215). The court concluded that because the petitioner

was not actually working he assumed the risk of the condi-

tions that caused the injury (R., pp. 211, 212, 213, 216).

This record presents squarely the question reserved by

this court in the final paragraph of Socony-Vacuum Oil

Co. v. Smith, (1939) 305 U. S. 424, 59 S. Ct. 262, 267: Does

the duty owed a seaman under the Jones Act and also with

respect to seaworthiness enure to and protect a seaman

when he is in common parlance ‘‘ off duty’’ or resting aboard

ship? The Circuit Court answered this question against

liability to the seaman, contrary to its own decisions and

the decisions of a number of other circuits, and dismissed

petitioner’s libel for injuries thus received.

Sundberg v. Washington Fish & Oyster Co. (C. C. A.-

9) 138 F. (2d) 801, 803;

States S. S. Co. v. Berglann, (C. C. A.-9, 1930) 41 F.

(2d), 456, 457, 458;

United Dredging Co. v. Lindberg (C. C. A.-5, 1927), 18

F. (2d), 453, 455; cert. denied 274 U. S. 759;

Kyriakos v. Goulandris, (C. C. A.-2, 1945), 151 F. (2d),

132, 138;

Krey v. United States (C. C. A.-2), 123 F. (2d) 1008.

The question of ‘‘off-duty liability’’ reserved in Socony-

Vacuum Oil Co. v. Smith, supra, was answered in favor of

liability with respect to shore injuries in relation to main-

tenance and cure in Aguilar v. Standard Oil Co., 318 U.S.

724; 63 S. Ct. 930. But the reserved question with respect

to off-duty liability under the Jones Act for unseaworthiness

has not yet beer passed upon by this court, and is squarely

presented by this petition. The adverse ruling of the Dis-

trict Court on this issue was affirmed by the Circuit Court

of Appeals.

The trial court signed formal findings prepared by coun-

sel for respondent. These findings did not follow the deci-

sion or reasoning of the trial court in that they purport

to exonerate the ship from the charges of unseaworthiness,

negligence and damages. It is, therefore, necessary to

review the salient facts as to how the petitioner received his

injuries and briefly the nature of the unseaworthiness estab-

lished by petitioner. A more detailed reference to this

testimony is included in the brief accompanying this peti-

tion.

Clyde Bornhurst, aged 16 years (R., p. 36), was one

of three wipers employed on the respondent’s tanker

SS Puente Hills on May 12, 1945, at a monthly wage.

While the vessel was anchored off Finschaven, New Guinea,

he had been assigned to cleaning and sweeping the hot, dusty,

forecastle where the temperature was above 100 degrees.

After working for an hour or so he went out to the well

deck to ‘‘get a breath of fresh air,’’ idly leaned against a

tank top, and received serious injuries to his hands when a

tank top cover dropped upon them.

The tank top is a cylindrical iron collar about 5 feet in

diameter and about 2% feet high, rising from the well deck

around an opening in the tank itself. A heavy cover or

lid, weighing about 600 pounds, hinged at the rear, is

raised or lowered by operation of a ‘‘jack screw’’ iuechan-

ism. The jack screw is a large threaded bolt about 6 feet

long and 1% inches in diameter, upon which a ‘‘swivel

plate’’ is turned as the tank cover is moved. As the cover

raises the jack screw tilts backward. Due to the ‘‘worm

gear’’ the movement of the cover itself is imperceptibly

slow, as the swivel plate nut is turned by use of a large

ratchet wrench.

The tank top raising mechanism was badly rusted (R.,

p. 98) corroded and ‘‘frozen’’ (R., p. 121). This con-

dition was apparent to the mates and men in the deck

department (R., p. 103). It had existed since the vessel

left San Pedro, California (R., p. 101). Witness Binder,

the maintenance man, whose duty it was to keep the parts

in good working order (R., p. 70) had discussed the con-

dition with the Chief Mate (R., p. 132, 133), but nothing was

done. He reported the condition to the boatswain and asked

permission to repair and grease these moveable parts be-

cause there was a danger. He was positive that the hack

screw on the tank top where the accident occurred was cor-

roded (R., p. 133). The boatswain discussed the condition

with the Chief Mate before the accident (R., p. 112, 115),

but no order was given to him to ‘‘unfreeze’’ the jack screw.

On May 12, 1945, and prior to the accident, when the vessel

was 36 days out from San Pedro, two men, under the

direction of the Chief Mate, were attempting to raise the

tank top cover. Due to its ‘‘frozen’’ condition they were

having some difficulty and were using a large ratchet wrench

with a leverage of about 11% or 2 feet (R., p. 48). They had

succeeded in raising it to about a 45 degree angle, where it

apparently became fast.

Petitioner, while this work was going on, had been sweep-

ing the engine room crew’s quarters on the well deck level.

He commenced this work at about 8:00 A. M. (R., p. 41). It

was hot and dusty in the forecastle (R., p. 64). The Chief

Engineer Haugen testified that it was close to 100 degrees

on deck and higher in the forecastle (R., p. 190), and that it

is customary and necessary (R., p. 191) for a man to go out

on deck for a ‘‘breath of fresh air’’ (R., p. 200). Peti-

tioner left the forecastle, went a short distance (R., p.

85) to the tank top, to lean against it and rest (R., p. 64).

With the curiosity characteristic of a 16 year old boy, he

looked into the half open tank (R., pp. 64-5). He faced

the tank top and placed his hands on the coaming. There

is some doubt as to whether the tank top was actually

moving (R., p. 67). Petitioner himself does not remem-

ber whether it was or not, but the fact that the men

doing the work applied sufficient force to break the jack

ars

screw, attempting to move it, justifies the inference

that the cover was wot in motion. In any event, if the

mechanism had been well greased and in perfect working

order the upward motion would have been so slow as

hardly to have been noticed.

The jack screw being titled backward with the cover at a

half-opened position, the men were crouching behind the

cover to turn the wrench. They applied sufficient pressure

to break the brass bolt, 14% inches in diameter.

The cover, held only by the jack screw, fell suddenly.

Someone, possibly the mate (R., p. 68) shouted ‘‘Look

out.’’ Petitioner had time to withdraw his head and

shoulders, but the cover fell heavily on his hands. The

permanent injuries he suffered were described by Dr. Spear

as a ‘‘horribly deformed left hand’’ (R., p. 159).

After the accident the broken jack screw was examined.

The ends showed a flaw or ‘‘airpocket’’ (R., p. 174) the

size of a dime or penny (R., pp. 125, 126), the break was

‘*clean’’ around the perimeter (R., p. 129) but not at the

center (R., p. 128) where it was discolored. The broken

jack screw was replaced by a replacement part, carried

aboard, because these jack screws ‘‘worked hard’’ and were

expected to break (R., p. 196). Some of them did break and

nearly all of them bent (R., p. 127).

The Basis of the Court’s Jurisdiction

The jurisdiction of this Court is founded upon Section

240(a) of the Judicial Code, as amended, Title 28 U.S. C. A.,

Sec. 347(a).

The Federal Statutes construed by the court below, which

construction is claimed to be in error, are as follows:

The Jones Act (June 5, 1920, C. 250, Sec. 33, 41 Stat. 1007,

Title 46 U. S. C. A. See. 688;

Federal Employers’ Liability Act (April 22, 1908) e. 149,

Sec. 1, 3, 4, 35 Stat. 65, 66; August 11, 1939, ¢. 685, Sec. 1, 53

Stat. 1404, Title 45 U. S. C. A. See. 51; Title 45 U.S.C. A,

See. 51, 53, 54.

The date of the judgment and decree of the United States

Circuit Court of Appeals for the Ninth Circuit sought to be

reviewed is December 4, 1947.

This petition presents the following special and important

reasons for review of the opinion ana decree below:

(a) The Cireuit Court of Appeals by its decision has ig-

nored the fact that the ship, particularly at sea, is both the

home of the seaman and the place in which the seaman works.

In both particulars the seaman must accept the conditions

as he finds them, both during his hours on duty and in those

periods when he is relaxing or even indulging in the satisfac-

tion of an idle ‘‘curiosity.’’

(b) The Cireuit Court of Appeals in its opinion has re-

fused to give effect to the rule which makes the ship re-

sponsible to a seaman injured through negligence or unsea-

worthiness during periods he is not working.

decree appealed from, decided an important question of

admiralty law which has not been, but which should be, set-

tled by the Supreme Court, being the point of law expressly

reserved in the final paragraph of the decision of this Court

in Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 59 S. Ct.

962, 267 (Rule 38(b)).

Opinion. of the Court Below

The opinion of the Circuit Court of Appeals, Ninth Cir-

cuit, is dated December 4, 1947. The case on appeal was

heard by Justices Mathews, Stephens and Orr.

Questions Presented

The questions presented are:

(a) Whether or not the United States Circuit Court of

Appeals, 9th Circuit, and the District Court erred in not

holding that the ship was under a legal duty to avoid injur-

ing a seaman either negligently or through an unseaworthy

condition during a time when the seaman was not perform-

ing the particular tasks assigned to him and was resting

from his work.

(b) Whether or not said lower courts erred in not finding

that the proximate cause of petitioner’s injuries was the

unseaworthiness of said ship.

Reasons Relied upon for Allowance of Writ

(1) The decision of the Circuit Court of Appeals for the

Ninth Circuit on the basic question of liability, assumption

of risk and contributory negligence is in direct conflict with

the applicable decisions of this Court in:

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

Arizona v. Anelich (1936), 298 U. S. 110;

Beadle v. Spencer (1936), 298 U. S. 124;

Tiller v. Atlantic Coast Line R. Co. (1943), 318 U.S. 54;

Socony-Vacuum Oil Co. v. Smith (1939), 305 U. S. 424.

(2) The question of whether a seaman who is injured by

an unsafe appliance while ‘‘off duty’” was specifically re-

served in the final paragraph of :

Socony-Vacuum Oil Co. v. Smith (1939), 305 U.S. 424.

(3) The decision of the Circuit Court of Appeals is in di-

rect conflict with,the decisions of the following Circuits:

Second Circuit:

The H. A. Scandrett (1937), 87 F. (2d) 708;

Krey v. U.S. A. (1941), 123 F. (2d) 1008; |

Kyriakos v. Goulandris (1945), 151 F. (2d) 132. 2

Fifth Circuit:

United Dredging Co. v. Lindberg (1927), 18 F. (2d) 453

(Cert. denied 274 U 2).

_—

Its own decisions in the Ninth Circuit:

Sundberg v. Washington Fish and Oyster Co. (1943),

138 F. (2d) 801;

States S. 8. Co. v. Berglann (1930), 41 F. (2d) 456.

(4) The decision of the Circuit Court of Appeals is

entirely contrary to the principles of this Court announced

in the case of:

Aguilar v. Standard Oil Co. (1943), 318 U. S. 724;

where this Court held that a seaman ‘‘off duty’’ was never-

theless sufficiently within ‘‘the framework of his existence’’

and scope of his employment to entitle him to recover

maintenance and cure.

(5) The decision of the Circuit Court of Appeals presents

the important question reserved in Socony-Vacuum Oil Co.

v. Smith, supra, as to whether the ship was liable to peti-

tioner for an unseaworthy condition which proximately

caused petitioner’s injuries during a period he was tempo-

rarily resting from his assigned work.

Prayer

WHeERrEFoRE your petitioner prays that a Writ of Certio-

rari be issued out of and under the seal of this Court, di-

rected to the United States Cireuit Court of Appeals, Ninth

Cireuit, commanding said court to certify and send to this

Court the transcript of the record in the above entitled Clyde

- Burdette Bornhurst, a minor, by Isabel Bornhurst, his

guardian ad litem, appellants, vs. United States of America,

appellee, No. 11,577, and all the proceedings in said United

States Circuit Court of Appeals to the end that said cause

may be reviewed and determined by this Court and the

judgment of the United States District Court, for the South-

ern District of California, Central Division, and the judg-

ment of the United States Circuit Court of Appeals, Ninth

Cireuit, be reversed and the case remanded for further pro-

ceedings according to law.

Criype Burpetre Bornuurst,

A Minor,

By Isaneit Bornuvurst,

His Guardian ad litem;

Kyextanp C. Tanner,

Of Attorneys for Petitioners,

P.O. Address: 1041 Pacific Bldg.,

Portland 4, Oregon.

Attorneys:

Epwarp J. Ciark,

1041 Pacific Building,

Portland 4, Oregon;

Dee B. Tanner,

507 Continental Building,

Los Angeles 13, California.

—_—_———_»

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 574

CLYDE BURDETTE BORNHURST, a Miwon, sy ISABEL

BORNHURST, His Guarpian ap Lirem,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT.

Opinions of the Courts Below

The opinion of the Circuit Court of Appeals has not as yet

been officially reported, but is printed in the record (R., p.

218).

No oral opinion was rendered by the District Court for

the Southern District of California, Central Division, but

its findings of fact and conclusions of law appear in the

record (R., pp. 17-20) and a clear explanation of the

court’s decision appears in a colloquy between the court

and counsel (R., pp. 208-216). At page 209 the court ruled

that the law as announced in the Mahnich case (Mahnich

v. Southern S. S. Co., 321 U. S. 96, (1943) was applicable

only when the seaman was injured while in the performance

of some duty. On page 210, the court stated that if this

injury had occurred in the performance of one of peti-

tioner’s duties he would not have been held to have

assumed the risk. And fer further statements by the court

to this effect see the record (R., pp. 211, 212, 215, 216).

Grounds on Which Jurisdiction of the Supreme Court of

the United States Is Invoked

The jurisdiction of this court is founded upon Section

240(a) of the Judicial Code, as amended, Title 28 U.S.C.A.

See. 347(a). The Federal Statutes construed by the court

below;-which construction is claimed to be in error, are as

follows : |

Federal Employers’ Liability Act (April 22, 1908, c. 149,

See. 1, 3, 4, 35 Stat. 65, 66, August 11, 1939, c. 685, Sec. 1,

53 Stat. 1404; Title 45 U.S.C.A., Sec. 51; Title 45 U.S.C.A.,

Sees. 51, 53, 54; Jones Act, Sec. 688, Title 46 U.S.C.A.;

Liability for unseaworthiness as defined in Seas Shipping

Co. v. Sieracki, 328 U. S. 85; 66 8. Ct. 872.

The petition presents the following special and impor-

tant reasons for review of the opinion below:

(a) The Cireuit Court of Appeals by its decision has

ignored the fact that the ship, particularly at sea, is both the

home of the seaman and the place in which the seaman

works. In both particulars the seaman must accept the con-

ditions as he finds them, both during his hours on duty and

in those periods when he is relaxing or even indulging in the

satisfaction of an idle ‘‘ curiosity.’’

(b) The Cireuit Court of Appeals in its opinion has re-

fused to give effect to the,rule which makes the ship respon-

sible to a seaman injured through negligence or unsea-

worthiness during periods he is not working.

<n fates

decree appealed from, decided an important question of

admiralty law which has not been, but which should be,

settled by the Supreme Court, being the point of law ex-

pressly reserved in the final paragraph of the decision of

this Court in Socony-Vacuum Oil Co. v. Smith, 305 U. S.

424; 59 S. Ct. 262, 267; (Rule 38(b), Revised Rules of the

Supreme Court.)

Statement of the Case

Petitioner, aged 16 years (R., p. 36) on April 17, 1945,

signed shipping articles for employment by respondent

on the tanker owned by it known as the SS Puente Hius

(R., p. 36) in the engine room crew as a wiper. He

was paid on a monthly basis (Answer, R., pp. 8, 58). He

was assigned off Finschaven, New Guinea, about 8 A. M. to

cleaning and sweeping the hot, dusty forecastle where the

temperature was about 100 degrees (R.,. pp. 41, 63, 190).

It was customary and necessary for men to go out on deck

for a breath of fresh air (R., pp. 191, 200). Petitioner

left the forecastle and went a short distance to the tank

top (R., pp. 84, 85) to lean against it and rest (R., p. 64).

With the curiosity characteristic of a 16 year old boy,

he looked into the half open tank (R., p. 64). Crew mem-

bers working on the cover applied sufficient pressure to

break a brass bolt 14% inches in diameter, causing the cover

to fall suddenly (R., pp. 66, 68). Petitioner suffered per-

manent injuries consisting of amputated fingers and in-

juries to his left hand (R., p. 159). After the accident the

broken jack screw was examined. The end showed a flaw

or airpocket (R., p. 174) the size of a dime or penny (R.,

pp. 125, 126). The break was clean around the perimeter

(R., p. 126) but not at the center (R., p. 128), where it was

discolored. , The broken jack screw was replaced by a re-

placement part carried aboard because these jack screws

ee oe ene

Sr eegeenneenrneee

‘‘worked hard’’ and were expected to break (R., p. 196).

Some of them did break and nearly all of them bent (R.,

p. 127).

An examination of the record will disclose little, if any,

conflict on the unseaworthy condition of the appliance which

caused petitioner’s injuries. The working pins were badly

rusted (R., p. 98); the pins were corroded when the ves-

sel was at San Pedro (p. 101); there was no way to get

grease to the moving parts (p. 101) ; the rusty condition was

apparent to the employees of the ship (p. 103) ; it was filed

off after the accident (p. 107); the jack screws were cor-

roded (p. 121); the swivel bearings would not revolve (p.

184); the jack screws worked hard (p. 195); there was a

flaw or airpocket in the jack screw the size of a dime (p.

125); this flaw showed discoloration to a person not a

metallurgist; it showed a clean, fresh break at the edges,

but the center of the break was not clean; it was apparent

that the metal was not completely joined (p. 128). There

was testimony to the effect that the condition of the tank

raising mechanism was generally bent and corroded (p.

131). The pins in the bolts were corroded (p. 172); the

jack screws were frozen by rust and corrosion (p. 173).

Alfred Binder, the maintenance man, testified that condi-

tions were poor (R., p. 131), that the pins were rusted and

corroded and could not be moved easily (R., p. 131), that

it was his duty to repair and condition these parts, that

he knew there was a danger (R., p. 133), that he had asked

the boatswain for authority to correct the condition but

could not obtain such authorization (R., p. 933). The mate

(who personally supervised this raising operation) stated

that the top raising mechanism was not in poor condition

before the accident but that he did not know the condition

(R., p. 170) and had not examined the equipment (R., p.

172), although he knew of corrosion in the bolt. The break

in this jack screw, as well as in the others that broke, was

—_—_——

—

due to strain as pressure was applied to the ‘‘frozen’’

mechanism (R., p. 173). The Chief Engineer testified that

there had been previous trouble with jack screws on a pre-

vious voyage, and that they were expected to break, and

that extra replacement parts had therefore been requisi-

tioned (R., pp. 195, 196).

. The petitioner was the youngest member of the crew

(R., p. 836). He had been at sea for 24% months, had never

seen a similar accident (R., p. 87), knew that it was the

deck department’s job to open tank tops, had worked about

other tank tops ‘‘butterworthing’’ or steam cleaning them

(R., p. 50) when the tank covers were held at 45 degrees

or more. There is nothing to indicate that he knew of any

danger or had any reason to expect that a tank top cover

held up by a 1% inch jack screw would fall. He had had

nothing to do with opening tank tops (R., pp. 70, 83). He

did know that it was customary for the crew to lean

against the tank tops, and he himself had had occasion to

‘thang around’’ them (R., p. 86).

Specification of Errors

The United States Circuit Court of Appeals, Ninth Cir-

cuit, erred:

(1) In holding and decreeing that petitioner assumed the

risks of injury from unseaworthy equipment during the

periods of time he was not actually working, and in not

holding and decreeing that he did not assume those risks

while ‘‘off-duty.’’

(2) In concluding that the petitioner was not entitled to

recover and that his libel should be dismissed on the follow-

ing findings of the trial court set forth in its opinion of

December 4, 1947, herein:

‘*The libelant, voluntarily and not in the performance

of any work or duty which he was required to do or

Pena

perform, placed his hands on the edge of said tank

and leaned forward, supporting his weight by his hands,

for the purpose of examining the inside of said tank.

Said acts on the part of the libelant were prompted

solely and exclusively by the libelant’s curiosity, and

the libelant sustained injury to his hands when said

tank top suddenly descended and pinched the libelant’s

fingers between the under surface thereof and the rim

of said tank. * * * The libelant had no duties of

any kind to perform at or near the tank top, and if

the libelant had continued in the performance of his

regular duties, he would not have been injured. * * *

‘By placing his hands upon the rim of said tank while

work was being done with reference to the tank top,

the libelant (appellant) * * * assumed the risk of in-

jury which might ensue.’ Appellant contends that this

holding was erroneous. In view of the conclusions

reached by us, this contention need not be considered.”’

(3) In making the following ruling:

‘‘Upon the facts found, the court correctly concluded

that appellant was not entitled to recover, and that the

libel should be dismissed with costs to appellee.’’

(4) In making the following ruling:

‘(The findings are supported by substantial evidence,

are not clearly erroneous, and hence should not be

disturbed.,’’

And in not finding and decreeing that the respondent

was liable to petitioner for the unseaworthy and negligently

unsafe condition of the ship, which conditions proximately

caused petitioner’s substantial injuries.

ARGUMENT

Point I

A seaman, while off duty aboard ship, does not assume

the risk of injury due to unseaworthy appliance.

This point has been specifically reserved by this court in

Socony-Vacuum Oil Co. v. Smith (1939), 305 U. S. 424, when

it said:

‘‘We leave to future cases as they may arise the

determination of what rule is to apply in cases where

the seaman’s election to use an unsafe appliance is in

disobedience of orders or made while not on duty.”’

A distinction is drawn in the case of Aguilar v. Standard

Oil Co., (1943) 318 U. S. 724, between a seaman who leaves

a ship for his own purposes and a seaman who goes ashore

contrary to orders. This court appropriately pointed out

that for the work on shipboard to move smoothly, relaxation

ashore is necessary. In the case at bar it was likewise

necessary for petitioner to fortify himself with a breath

of fresh air before resuming his dusty job in the hot fore-

castle. It is likewise necessary for a seaman to sleep during

part of his time aboard ship. The ruling in this case would

deny him recovery for an injury caused by a defective bunk

because he assumed a risk while not actually working, or

for injuries suffered at any other time while not actually

performing actual physical work.

We have adverted to the evidence showing that the peti-

tioner had been to sea for 24% months (R., p. 87); that he

knew it was customary for the crew to lean against the tank

tops (R., p. 86). He should not be charged with negligence

for doing what experienced members of the crew had done.

In the case of Northwestern Pac. Ry. Co. v. Fiedler (CCA-

§, 1931) 52 F. (2d) 400 (cert. den. 305 U. S. 605), it was held

that an employee may assume that an employer has exer-

cised due care with respect to his safety until he is notified

to the contrary, ‘‘unless the want of due care and the danger

are so obvious that an ordinarily ‘careful person under the

circumstances would observe and appreciate them.’’

In this case the danger would not have been apparent to

an experienced seaman who was not charged with inspection

of the tank cover raising mechanism. There was no rea-

son for petitioner to inspect the corroded jack screw, and

there is no justification for expecting an inexperienced 16-

year old seaman to anticipate that the men working on the

mechanism would or could break a 1% inch bolt by sheer

brute force. It was likewise unforeseeable that the tank

top would drop suddenly. If the danger was such that this

inexperienced seaman should have seen it, it must have given

rise to a duty upon the mate and crew members to have

warned this youth away from a danger which he did not

appreciate.

In the case of Socony-Vacuum Oil Co. v. Smith (1939) 305

U.S. 424, the defective appliance was known to the seaman.

Here there is no showing that petitioner knew or should

have known of the danger.

Petitioner urges that the ruling of the Circuit Court of

Appeals and the District Court on this point is a long

step backward to the triple defense of fellow servant rule,

assumption of risk and contributory negligence that plagued

the master and servant law of the nineteenth century. It

can in no way be reconciled with the trend of this court’s

repeatedly expressed desire to ‘‘guard with jealousy the

rights of seamen.’’

Petitioner was within the scope of his employment. The

Circuit Court of Appeals and the District Court have wholly

misconstrued the law applicable to the scope of a seaman’s

employment. The Circuit Court of Appeals, affirming the

rr ee

lower court, held that petitioner alone was negligent in

that he

« * * * voluntarily and not in the performance of

any work or duty which he was required to do or per-

form, placed his hands on the edge of the tank. * * *

Said acts on the part of libelant were prompted solely

and exclusively by the libelant’s curiosity. * * * The

libelant had no duties of any kind to perform at or

near the tank top and if the libelant had continued in

the performance of his regular duties he would not

have been injured.’’ (Opinion Dec. 4, 1947 herein).

This court in the case of Aguilar v. Standard Oil Co.,

(1943) 318 U. S. 724, stated that the ship was not merely

the seaman’s place of employment, but was the ‘‘framework

of his existence.’’ If the seaman is ‘‘on duty”’’ for the pur-

poses of maintenance and cure while going to and from the

ship, a fortiori he is ‘‘on duty’’ while he is catching a breath

of fresh air during his actual work. The Chief Engineer

testified (R., p. 200). ‘‘If we can’t get a breath of

fresh air, certainly we couldn’t do our work’’; and (R.,

p. 191) ‘Well, it is customary and necessary for a man

to go out on deck and take a breath of fresh air in a relaxed

position with a foot on a valve or something’’, and that

petitioner’s action was a ‘‘very customary procedure.’’

The mate testified that getting a breath of fresh air was

entirely authorized and a common practice (R., pp. 177,

178). Binder testified that petitioner’s action was cus-

tomary because the tank top was a good place to ‘‘lean on’’.

(R., p. 185).

Numerous cases arising under Workmen’s Compensation

acts support the proposition that this action of petitioner

did not exclude him from the scope of his employment:

In Whiting-Mead Co. v. Industrial Acc. Comm. (1918)

178 Cal. 505, 173 Pac. 1105, a workman, who temporarily

ceased actual work to strike a match and accidentally ignited

seiniaaiainiaill —

a turpentine soaked bandage, was held to be within the scope

of his employment.

See also the case of United Dredging Co. v. Lindberg

(CCA-5, 1927), 18 F. (2d) 453 (cert. den. 274 U. S. 759)

where the decedent sat down to rest.

In the case of Wong Bar v. Suburban Petroleum Trans-

port, Inc. (CCA-2, 1941), 119 F. (2d) 745, it was said that a

seaman is in the course of his employment until he has left

the ship.

In Meyer v. Dollar S. S. Line (CCA-9, 1931), 49 F. (2d)

1002, the seaman was said to be in the service of the ship

even while ‘‘ off duty,’’ because he is subject to call, although

the court held that scuffling was ‘‘wrongful misconduct.”

(This holding has since been overruled.)

In States S. S. Co. v. Berglann (CCA-9, 1930), 41 F. (2d)

456, it was held that a seaman’s employment includes not

only actual time spent working, but also such ordinary tasks

for his own comfort and convenience as are necessarily con-

nected with his employment.

In the case of Zurich General Accident Co. v. Brunson

(CCA-9, 1926), 15 F. (2d) 906, an employee was within the

scope of his employment while eating lunch.

In Sundberg v. Washington Fish and Oyster Co. (CCA-9,

1943), 138 F. (2d) 801, an employee who was on deck watch-

ing seals, recovered because of an injury sustained through

negligence of a fellow servant. The court held that, although

he was ‘‘off duty’’ he was considered to be within the course

of his employment because of his inability to leave the ship.