Opposition Brief — American President Lines, Ltd. v. Agnew

FILE COPY FIras

MAR 27 1950

Nos. 581 and 582

AMERICAN PRESIDENT Links, L1p.,

(a corporation),

Petitioner,

vs.

James M. AGNEW, et al.,

Respondents.

AMERICAN PRESIDENT LINEs, L1D.,

(a corporation), me

Petitioner,

vs.

JoHN W. Grrr, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

BRIEF FOR RESPONDENTS IN OPPOSITION.

¢ Apert MICHELSON,

1650 Russ Building, San Francisco 4,

Counsel for Respondents.

HERBERT CHAMBERLIN,

Russ Building, San Francisco 4,

Of Counsel.

1. Certiorari should be denied for the reason that the

petition does not present questions whose solution

will have immediate importance beyond the particular

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2. Certiorari should not be granted to disturb the rea-

sonable construction given by the court of appeals

to the riders prepared by petitioner and forming part

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CN gcc s cin Sinn ons po ekaneeupeeessei tus ee 8

Table of Authorities Cited

Cases Page

Magnum Import Co. v. Coty, 262 U.S. 159.............. 6

Mason v. Texas Co., CA 1, 171 F.2d 559, certiorari denied

May 31, 1949, 337 U.S. 915, 69 S.Ct. 1156.............. 4

Montoya v. Tidewater-Associated Oil Co., CA 2, 174 F.2d

607, certiorari denied October 17, 1949, 70 S.Ct. 69...... 4

Steeves v. American Mail Lines, Ltd., CA 9, 154 F.2d 24 4

TS UBS. ann, BOGS (CR) oo s eveeieisas ec ivegeraees 2

In the Supreme Court

‘Auited States

OcTOBER Term, 1949

Nos. 581 and 582

AMERICAN PRESIDENT LinEs, LTD.,

(a corporation),

Petitioner,

vs.

JamEs M. AGNEW, et al.,

Respondents. | gowso.maTED

ON APPEAL

AMERICAN PRESIDENT Linzs, L1D.,

(a corporation),

Petitioner,

vs.

Joun W. GRIFFIN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

BRIEF FOR RESPONDENTS IN OPPOSITION.

OPINIONS BELOW.

The opinion of the District. Court.is reported as 73

F. Supp. 944. R#581, 366-382. The opinions of the

Court of Appeals are reported as 177 F.2d 107, and

177 F.2d 111. R#581, 428-434; R582, 46-51.

JURISDICTION.

In each case the Court of Appeals entered judgment,

as amended, on September 9, 1949. R#581, 426-427;

R#582, 42-43. Jurisdiction of this Court is invoked

under the Act of June 25, 1948. 28 U.S.C., sec. 1354

(1).

——————

QUESTIONS PRESENTED.

1. Whether the petition presents questions whose

solution will have immediate importance beyond the

particular facts and parties.

2. Whether this Court should disturb a reasonable

construction given by the Court of Appeals to riders

prepared by petitioner and forming part of shipping

articles.

STATEMENT.

Respondents are seamen who were members of the

crew of the President Harrison when it sailed from

San Francisco for the Orient on October 17, 1941. Pet.

3-4. The Japanese captured the vessel and crew west

of the 180th meridian on December 8, 1941. Pet. 3-4.

Respondents were interned on the vessel until March

of 1942. R581, 212-213. They were then interned by

the Japanese on land west of the 180th meridian, some

until August 15, 1945, others until ae 15, 1945.

R#581, 8; R#582, 7.

The shipping articles of the President Harrison

contained riders (R#581, 376-378), prepared by the

shipowner (R#581, 303, 355), petitioner herein,

whereby the shipowner promised and agreed to pay

respondents additional wages at stipulated rates,

termed ‘‘emergency wage increase’’ or ‘‘war bonus’’

(R#581, 386), for the period of internment if they

were interned west of the 180th meridian. The Court

of Appeals held that these riders, reasonably con-

strued, entitled respondents to war bonus, at the rates

stipulated, for the period they were interned by the

Japanese on sea or land west of the 180th meridian.

177 F.2d 107, R#581, 428-434; 177 F.2d 111, R582,

46-51. For purposes of its petition herein, petitioner

concedes that construction to be a reasonable one. Pet.

21. Upon that construction the Court of Appeals re-

versed the final decree of the District Court denying

respondents such war bonus, but affirmed that part of

the decree denying respondents maintenance after cap-

ture of the vessel. R#581, 426-427; R#582, 42-43. It

denied the shipowner’s petition for rehearing. It

granted in part the petition of respondents to modify

or amend the judgments and allowed weponiente f in-

terest and costs.

The case of the President Harrison is one of the

very few cases wherein an American merchant vessel

4

sailing for the Orient shortly before Pearl Harbor was —

captured by the Japanese in the Orient or enroute

thereto after Pearl Harbor. In the uncertain and un-

settled days with ever-threatening emergencies and

hazards preceding Pearl Harbor, riders forming parts

of shipping articles and stipulating for war bonus

were widely variant, An illustration is furnished by

Steeves v. American Mail Lines, Ltd., CA 9, 154 F.2d

24. All these variant riders, including riders worded

similarly to those here involved, became obsolete after

Pearl Harbor and the creation of the Maritime War

Emergency Board on December 18, 1941, Riders stipu-

lating for war bonus then became standardized and

were made subject to the supervision, control, and de-

cisions of the Board. On at least two occasions this

Court has denied certiorari in cases involving MWEB

riders. Mason v. Texas Co., CA 1, 171 F.2d 559, cer-

tiorari denied May 31, 1949, 337 U.S. 915, 69 S.Ct.

1156; Montoya v, Tidewater-Associated Oil Co., CA 2,

174 F.2d 607, certiorari denied October 17, 1949, 70

S.Ct. 69. A construction by.this Court of the obsolete

and individually worded riders here involved could

have no possible importance beyond the particular

facts and parties involved.

Petitioner won the war bonus issue in the District

Court on the theory that the riders it prepared were

valid and enforceable but ambiguous. R581, 368-370,

Petitioner adhered to that theory in the Court of Ap-

peals and lost. R#581, 423-426; R582, 49-51. In

questing certiorari it now discards that theory and

advances a new and different theory. The actual

ground of the petition is obvious. It sifts down to a

plea that the riders violated collective bargaining

agreements between petitioner and labor unions

whereof respondents were members. Although peti-

tioner prepared those riders and thereby induced re-

spondents to accept employment and sail.on_peti-

tioner’s vessel to internment by the Japanese for ap-

proximately three years and nine months, petitioner

now asks this Court to grant certiorari and relievé it

from liability for war bonus on the theory that the

promises and agreements it made in the riders to pay

war bonus reflected unfair labor practices on its part

and were therefore invalid and unenforceable. In sup-

port of this new and different theory petitioner fash-

ions arguments around labor law decisions by this

Court and other courts wherein questions of unfair

labor practices were considered and determined. But

the issues before the Court of Appeals in the present

case did not require the consideration or determina-

tion of questions of that type. Nor did the Court of

Appeals attempt to decide them. Nor can it be said

that the decisions herein are at all in conflict with any

of the labor law decisions invoked by petitioner. The

petition for certiorari therefore presents the situation

where a party defeated in the Court of Appeals on the

issues there raised, considered, and determined is

merely seeking another hearing in the Supreme Court

for the purpose of raising new and different issues.

?

1. CERTIORARI SHOULD BE DENIED FOR THE REASON THAT

THE PETITION DOES NOT PRESENT QUESTIONS WHOSE

SOLUTION WILL HAVE IMMEDIATE IMPORTANCE BEYOND

- THE PARTICULAR FAOTS AND PARTIES.

In Magnum Import Co. v. Coty, 262 U.S. 159, it was

said at page 163:

“The jurisdiction to bring up cases by cer-

tiorari from the Circuit Courts of Appeals was

_ given for two purposes, first to secure uniformity

* of decision between those courts in the nine cir-

cuits, and second, to bring up cases involving

questions of importance which it is in the public

interest to have decided by this court of last re-

sort. The jurisdiction was not conferred upon this

court merely to give the defeated party in the

Cireuit Court of Appeals another hearing.”’

More recently, these principles governing certiorari

were repeated and amplified by the Chief Justice in

his address before the American Bar Association on

September 7, 1949. 70 S.Ct. XIII, XIV-XV.

Petitioner, as well as respondents, submitted to the

Court of Appeals the issue whether the terms of the

riders were self-sufficient to entitle respondents to the

war bonus they claimed. Upon a reasonable construc-

tion of the riders the Court of Appeals ruled against

petitioner. The actual scope of the decisions was a

determination of the simple question of what construc-

tion was to be accorded somewhat novel contracts be-

tween private parties. Petitioner concedes the gen-

eral rule that a question of that character does not

warrant certiorari. Pet. 17, 33. The applicability of

the general rule is particularly indicated here for, as

7

earlier pointed out, the riders involved and construed

were of a type that became obsolete after Pearl Har-

bor and the creation of the Maritime War Emergency

Board on December 18, 1941, and their construction

now can have no possible importance beyond the par-

ticular facts and parties involved.

2. OERTIORARI SHOULD NOT BE GRANTED TO DISTURB THE

REASONABLE CONSTRUCTION GIVEN BY THE COURT OF

APPEALS TO THE RIDERS PREPARED BY PETITIONER AND

FORMING PART OF THE SHIPPING ARTICLES.

The theory of petitioner at the trial and on appeal

was that the riders it prepared were valid and en-

forceable but ambiguous. As the Court of Appeals,

responsive to the issues it was asked to decide, gave a

reasonable construction to the riders, it is obvious

under the general rule previously mentioned that cer-

tiorari should not be granted to disturb that construc-

tion.

For the purposes of certiorari petitioner has dis-

carded its former theory and now advances a new and

contrary theory. Petitioner argues for the first time

in the petition herein that the riders it prepared re-

flected unfair labor practices on its part in violation

of collective bargaining agreements to which it was

party and that the riders were therefore invalid and

unenforceable. On a reconstructed case pursuing this

new and contrary theory and question of labor law it

suggests, petitioner asks this Court to disturb the rea-

sonable construction given the riders by the Court of

8

Appeals and declare the riders invalid and unenforce-

able. On that new and contrary theory, asserts peti-

tioner, the decisions of the Court of Appeals herein

are impliedly in conflict with labor law decisions of

this Court respecting unfair labor practices.

Both the scope and the objective of the petition

herein are obvious: petitioner discards the case it

made out in the Court of Appeals whereby issues were

submitted to that court for decision and decided on

the theory that the riders were valid and enforceable;

on a reconstructed case petitioner is merely seeking

another hearing, this time before the Supreme Court,

wherein it may urge its new and contrary theory that

the riders were invalid and unenforceable. Clearly,

certiorari is not merited under these circumstances.

CONCLUSION.

Respondents therefore respectfully submit that the

petition for a writ of certiorari should be denied.

Dated, San Francisco,

March R© 1950.

ALBERT MICHELSON,

Counsel for Respondents.

Hrrnert CHAMBERLIN,

Of Counsel.