# Petition for a Writ of Certiorari — Netherlands Ministry of Traffic v. Strika

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0576%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1951
- **Citation:** 341 U.S. 904

## Text

IN THE

Supreme Court of the United States

October Term, 1950

No. 575

NETHERLANDS MINISTRY OF TRAFFIC,
DIRECTORATE GENERAL OF SHIPPING,

Petitioner,
—vs.—

THOMAS STRIKA,
Respondent.

TE eee
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

——— eee eee

{ Gzorce A. Garvey
Counsel for Petitioner
99 John Street
New York 38, N. Y.

February 23rd, 1951.

INDEX

PAGE
OT Hintnhahahehunwanssdbaduacngrdes nes 1
RE EN a a a 2
Pe re 2
NS la bPinda deh da wi kb Odd A's + dowd <wanere We 2
Specification of Errors to be Urged ................. 5
Reasons for Granting the Writ .................... 6
EE Schaal eh ehEh ees sleds. ¥tbkS<Ak ones wean 13
CITATIONS
Cases:
Belden v. Chase, 150 U. S. 674 ............ccccccecee 12
Guerrini v. U. S., 167 F. (2) 352, 1948 A. M. C. 724
GS DUN Deidre d sees 5 ila We suceuskaweeus 13
International Stevedoring Co. v. Haverty, 272 U. S.
PI ie Me WIE ios an occu ne vececnceccuss 7
Johnson v. U. S. Shipping Board, ete. Corporation,
EAE Pit daunin dd dsie wkd’ Ww Sam edd Ks esa es 13
Netherlands American Steam Nav. Co. v. Gallagher,
i nr a 10

O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S.
EE avn ca su adava enna eadosas

il

PAGE

In re Pennsylvania R. Co., 48 F. 2d 559 ............. 13

Resigno v. Jarka Co., Inc., 248 N. Y. 225 (1928) ..... 9
Seas Shipping Co. v. Sieracki, 328 U. S. 85, 1946

De EE Seed eeu wksa breks en Ui ceeeae Rees 2, 4, 5, 6
Swanson v. Marra Brothers, Inc., 328 U. S. 1, 1946

Pk ee ae kava ena onerenamese nea oc: 7,9

MISCELLANEOUS

New Jersey Workmen’s Compensaticn Law (N. J. R. S.
34:15-7, et seq.)

IN THE

Supreme Court of the United States

October Term, 1950

No.

tp
ww

NETHERLANDS MINISTRY OF TraFric, Drrecrorate
GENERAL oF SHIPPING,
Petitioner,
—vs.—

THomMas Srrika,
Respondent.

7%
vv

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

The NetHertanps MrInistry oF TraFFic, Directorate
GENERAL oF SHIPPING prays that a writ of certiorari issue
to review the judgment of the United States Court of
Appeals for the Second Circuit entered in the above en-
titled case on November 29, 1950.

Opinions Below

The opinion of the District Court (R. 1117-1143),* is
reported in 90 F. Supp. 534. The majority opinion of the
Cireuit Court of Appeals (R. pp. 393-399), and the dissent-
ing opinion (R. pp. 399-400) are reported in 185 F. 2d 555.

* References are either to folios or to pages of the record unless other-
wise indicated.

tbo

Jurisdiction

The judgment of the Court of Appeals for the Second
Circuit was entered on November 29, 1950. The jurisdiction
of this Court is invoked under 28 U. S. C. §1254 (1).

Questions Presented

1. Whether the Courts below erred in extending the
doctrine of Seas Shipping Co. v. Sieracki, 328 U. S. 85,
to a longshoreman injured on shore.

2. Whether the rights of a longshoreman injured on
shore should not be determined under the State Compensa-
tion Law and the remedies afforded by it, rather than
have the maritime doctrine of unseaworthiness of a vessel
extended to him.

3. Whether in a suit in a common law court, a plaintiff
may recover where he himself is found to be contribu-
torily negligent.

Statement

This action was tried on the civil side of the District
Court, Southern District of New York. Thomas Strika,
a longshoreman employed by the Jarka Corporation was
injured while working on Pier 5, Hoboken, New Jersey
on March 15, 1947 (R. 58). At the time of his accident,
Strika and fellow longshoremen were engaged in replacing
a ‘‘pontoon hatch cover’’ from where it had been earlier
placed on the pier to the deck of the SS ‘‘Zuiderkruis”’
owned by the petitioner (R. 324). The pontoon hatch cover
was approximately twenty feet long, six feet wide and

_-

about eighteen inches thick and weighed approximately
one ton (R. 73, 916). To replace this cover, the longshore-
men used two ‘‘bridles’’, each of which consisted of two
legs of steel wire about sixteen feet long (R. 75-77, 600).
These legs were joined to a steel ring at one end and were
fitted with hooks at the others (R. 75-77). These hooks
fitted into slots in the corners of the pontoon hatch cover
(R. 665-666). Two sets of bridles were used (R. 75). The
rings from each bridle were then placed in a hook attached
to a fall and by means of winches, the hatch cover was
started to be moved to the ship’s deck (R. 85). The rings
of the bridles were not fastened together by the long-
shoremen (R. 226-227). As the hatch cover was raised
about four feet, one of the rings slipped off the hook, caus-
ing the cover to drop on Mr. Strika’s leg, necessitating
an amputation (R. 105). Strika applied for and was award-
ed compensation benefits under the State of New Jersey
Workmen’s Compensation Law (R. 860). No claim for
benefits was made under the Longshoremen and Harbor
Workers’ Act (R. 861).

Seven separate questions were submitted by the trial
court to the Jury which answered them (R. 1031-1033),
in substance as follows:

1. The defendant furnished the bridles used to lift the
pontoon hatch cover.

2. The bridles were unsuitable for lifting the hatch cover.

3. The unsuitability caused or contributed to the plain-
tiff’s injury.

4. The shipowner did not know nor have reason to
know that the bridles were unsuitable or that they might
cause injury to someone such as the plaintiff.

5. The plaintiff’s damages were $75,000.00.

6. The plaintiff’s fault contributed to his injury.

7. The proportion of the plaintiff’s fault was ten per
cent.

Upon these special findings the District Court directed
judgment for the plaintiff and denied the defendant’s mo-
tion for judgment (R. 1143). By a two to one decision, the
Court of Appeals affirmed this judgment. The basis for
the District Court’s decision was that while recognizing
that this Court in Seas Shipping Co. v. Steracki, 328 U.S.
85 (supra) especially at p. 99, footnote 17, left undecided
the question of whether the doctrine of unseaworthiness
‘‘extends to injury incurred ashore by a stevedore’’, the
District Court felt that the rationale of the Sieracki case
‘‘clearly enubraces the longshoreman on the pier engaged
in loading or unloading the ship’’ (R. 1137).

The majority of the Court of Appeals in affirming the
District Court's judgment held (R. p. 398) :

“The breach of the ‘obligation’ to furnish a sea-
worthy ship is a tort; * * * From this the defendant
argues that since an action upon such an implied war-
ranty is only a tort, the maritime law can have no
jurisdiction over a breach of it occurring upon land;
that being, of course, an accepted constitutional lim-
itation upon maritime law. We should have found
this a serious obstacle were it not for O’Donnell v.
Great Lakes Dredge & Dock Co., supra, and the ratio
decidendi of Swanson v. Marra Brothers, Inc., supra;
but those decisions appear to us to settle it that such
a tort, arising as it does out of a maritime ‘status’ or
‘relation’, is cognizable by the maritime law whether
it arises on sea or on land. For it seems to us to follow,
if Congress has power to impose liabilities in favor of
seamen for lapses of care on shore, that Congress at

lillian ama

5

least would have power to impose a similar liability
when the lapse is in furnishing a seaworthy ship. It
is true that Congress has not intervened as to sea-
worthiness; yet there is no more reason to cireum-
scribe more narrowly the duty, which The Osceola,
supra, established as part of the maritime law, than
the Constitution cireumscribes the power of Congress,
for both in the end are based upon the same provision.
Moreover, we find confirmation for this in the ‘obliga-
tion’ of ‘maintenance and cure’ of a seaman injured
on shore, for that is concededly quite as entirely the
creature of the maritime law as the ‘obligation’ to fur-
nish a seaworthy ship. For these reasons, althougl
we have been unable to find a decision holding that a
Seaman, injured ashore by unseaworthy ship’s gear,
can recover, we have no doubt that he could; and, if a
seaman can, we see no reason to question the ability
of a longshoreman also to recover.”’

Specification of Errors to be Urged

The Circuit Court of Appeals erred:

1. In misconstruing and extending the doctrine of Seas
Shipping Co. v. Sieracki (supra) to cover a longshoreman
injured on shore.

2. In failing to reverse the judgment of the District

Court and dismiss the complaint in view of the findings of
the Jury that Strika was contributorily negligent.

3. In failing to apply the rules of the forum in which
the case was tried. Thus, since this case was tried in a
common law forum, the finding by the Jury of the plaintiff's

contributory negligence was a complete defense to the
action.

4. In failing to hold that the plaintiff’s rights, if any,
were covered by the New Jersey State Workmen’s Com-
pensation Law.

5. In affirming the judgment of the District Court.

Reasons for Granting the Writ

‘1. This is the first time that the point involved on this
appeal has been raised either in this Court or any other
federal court. The burden placed by this decision on the
shipping industry is unnecessarily heavy; unnecessary be-
cause longshoremen injured on shore are already covered
by liability without fault statutes namely, State Workmen’s
Compensation Acts. The specific question on this appeal
was expressly left open by the majority opinion in Scas
Shipping Co. v. Sieracki (supra) at p. 99, footnote 17. The
decision of the Court of Appeals is contrary to the impli-
cations and the indicated holding of this Court.

In O’Donnell v. Great Lakes Co., 318 U. S. 36, this Court
held that a seaman injured on land by a shipowner’s negli-
gence had an actionable claim under the Jones Act on the
ground that this was no more than a supplement to the
remedy of cure and maintenance which was an incident of
his employment by the ship. The question of whether a
longshoreman had the same rights as a seaman to recover
under the Jones Act for injuries on shore was specifically
left open by this Court in the O’Donnell case.

In Seas Shipping Co. v. Siecracki, 328 U. S. 85, 99, at
footnote 17, this Court said:

‘In this case we are not concerned with the question
whether the same policy extends to injuries incurred
ashore by a stevedore engaged in the same work, a

_

matter which is relevant however in Swanson v. Marra
Brothers, Inc., No. 405, decided this day, 1946 A. M. C.
715. Cf. O’Donnell v. Great Lakes Co., 318 U. S. 36,
1943 A. M. C. 149.”’

In Swanson v. Marra Brothers, Inc., 328 U. 8. 1, the
unanimous opinion was written by Ch. J. Stone, who had
dissented in the Sieracki case. In the Swanson ease, a long-
shoreman injured on a pier, sought to recover under the
Jones Act. His contention was that since he was a ‘‘sea-
man’’ under the decision of this Court in International
Stevedoring Company v. Haverty, 272 U.S. 50, and since
this Court in the O’Domnell case (supra) held that a sea-
man injuried on a pier could sue to recover under the Jones
Act, then the longshoreman was also entitled to sue. Obvi-
ously, if this Court intended for all purposes and in all
places, to permit a longshoreman to have all of the attrib-
utes and protections of a seaman (in addition to those
granted him by the Longshoremen and Harbor Workers’
Act and State Compensation Acts), then the Swanson case
would have come under the principle of the O’Donnell
case. However, by a unanimous decisior this Court held
in the Swanson case that the longshoreman was not en-
titled to sue to recover under the Jones Act.

If the Court of Appeals holding in the instant case is
correct, then a longshoreman should also be able to sue his
employer under the Jones Act for injuries sustained on
land such as was allowed to seamen under the O’Donnell
case. The contrary to this, however, has been held by this
Court in the Swanson case.

In the Swanson case (supra), this Court said (p. 6):

“‘The Act (Longshoremen’s and Harbor Workers’
Act) thus excludes from its benefits stevedores not

members of the crew who are injured on navigable
waters from recovering under the Jones Act as inter-
preted by the Haverty case. Those provisions make it
plain that Congress’ own interpretation of the Jones
Act is such as to preclude the extension of the doctrine
of that case to the specified employees injured on
land.’’

The Court then went on to quote from the Senate Judi-
ciary Committee’s Report made while considering the Long-
shoremen’s and Harbor Workers’ Act, which expressed
doubt as to the constitutional power of Congress to allow
recovery to such longshoremen injured on shore (p. 7) :

‘These men are mainly employed in loading, unload-
ing refitting and repairing ships; but it should be re-
marked that injuries occurring in loading are not
covered unless they oceur on the ship or between the
wharf and the ship so as to bring them within the
maritime jurisdiction of the United States. Sen. Rep.
No. 973 69th Cong., First Sess., p. 16.”’

The Court then concluded (p. 7):

“The Act leaves the injured employees in such cases
to pursue the remedies afforded by the local law, which
this Court has often held permits recovery against the
employer for injuries inflicted by land torts on his
employees who are not members of the crew of a vessel.
State Industrial Commission v. Nordenholdt Corp.,
supra; Smith & Son vy. Taylor, supra; cf. Minnie v.
Port Huron Co., supra. And it leaves unaffected the
rights of members of the crew of a vessel to recover
under the Jones Act when injured while pursuing their
maritime employment whether on board, Warner v.
Goltra, 293 U. S. 155, 1934 A. M. C. 1436; Norton v.

Warner Co., 321 U.S. 565, 1944 A. M. C. 337; see South
Chicago Co. v. Bassett, 309 U.S. 251, 255-6, 1940 A. M.
C. 327, or on shore, O’Donnell v. Great Lakes Dredge
& Dock Co., supra.’’

Chief Justice Stone in his dissenting opinion in the

Steracki case apparently gives this Court’s interpretation
of the Swanson case (328 U. S. 106) :

‘‘Wherever the injury occurs on navigable waters,
Congress has given to longshoremen and harbor work-
ers substantial rights to compensation against their
employer for injuries inflicted without his fault. South
Chicago Co. v. Bassett, 309 U. S. 251, 1950 A. M. C. 327.
It has left them free to pursue their remedy for injuries
resulting from negligence of third parties, including
in this case the vessel and the furnishers of the defec-
tive shackle. Where the injury occurs on land they are
free to pursue the remedy afforded by local law. State
Industrial Commission v. Nordenhold Corp., 259 U.S.
263; Smith & Son v. Taylor, 276 U. S. 179, 1928 A. M. C.
447; Swanson v. Marra Brothers, Inc., No. 405, 1946
A. M. C. 715, decided this day.’’ (Italics ours. )

So by the Supreme Court’s interpretation of the Sieracki

and Swanson cases, decided on the same day, the cloak of
a seaman granted a longshoreman under the Haverty case,
does not follow the longshoreman ashore but only remains
on his shoulders while he is aboard ship.

In Resigno v. Jarka Co., Inc., 248 N. Y. 225 (1928),

Ch. J. Cardozo writing for the Court said (p. 234) :

‘True, indeed, it is that the remedies available to a
stevedore may thus vary from day to day, and even
from hour to hour, with the location of his labor. Dis-

10

tinctions of that order are not unknown to the law.
They have been made familiar by rulings under the
Workmen’s Compensation Acts by which a longshore-
man is given a remedy if working on a boat and denied
the same remedy if working on a dock (State Industrial
Commission v. Nordenholt Corp., 259 U. S. 263). So
under the Employers’ Liability Act of Congress. The
servant gains a remedy or loses one according to the
particular service he is rendering at the very moment
of the injury (Chicago, B. d Q. R. R. Co. v. Harrington,
241 U.S. 177).’’

2. Mr. Strika accepted the benefits of the New Jersey
State Workmen’s Compensation Act (R. 860-861) :

The New Jersey Workmen’s Compensation Law
(N. J. R. S. 34:15-7, et seq.) provides:

34:15-40. Liasinrry or Tuirp Party: Where a third
person or corporation is liable to the employee or
his dependents for any injury or death, the existence
of a right of compensation from the employer or
insurance carrier under this statute shall not oper-
ate as a bar to the action of the employee or his de-
pendents, * * *

(f.) * * * The legal action contemplated herein
shall be a civil action at law in the name of the
injured em) loyee. * * *

A situation similar to the case at bar on this point was
thoroughly considered and decided by the Court of Appeals,
Second Circuit in Netherlands American Steam Nav. Co.
v. Gallagher, 282 F. 171 (C. C. A. 2) (supra). In that case
the plaintiff, a longshoreman and a resident of New Jersey,
was injured in Hoboken, New Jersey on the same pier on

11

which the accident in this suit occurred. He was engaged in
unloading cargo from a vessel owned by his employer,
the Netherlands American Steam Nav. Co., a foreign cor-
poration. The Court said (p. 173):

‘*This case presents an interesting and important ques-
tion, involving the jurisdiction of the Courts of the
United States and the applicability of the laws of a
state to the cause of action which the plaintiff asserts.
As the plaintiff at the time of his injury was perform-
ing service as a stevedore in unloading an ocean
steamer at her pier in Hoboken and the injury hap-
pened to him on the pier, it is necessary, in determining
the issues involved to consider the limits of the ad-
miralty and maritime jurisdiction of the federal
courts.’’

The question was answered (pp. 183-184) :

‘‘That the plaintiff being injured on the !and the wrong
was nonmaritime, and as such was not within the
admiralty jurisdiction, and was not brought within it
by the fact that he happened to be working at the time
under a maritime contract. And as the wrong done was
not within the admiralty jurisdiction, and was within
the jurisdiction of the courts of the state within which
the injury was inflicted, the Workmen’s Compensation
Act of New Jersey (P. L. 1911, p. 136) applies * * *.’’

Thus, Strike was limited by the provisions of the New
Jersey State Workmen’s Compensation Act to a civil suit
in law against any possibile negligent third parties. The
Jury disposed of this suit by finding that the plaintiff was
contributorily negiigent and that the defendant had no
knowledge of the unsuitability of the bridles.

12

3. This action was tried in a common law court. This
Court has many times held that depending on the forum
of trial, depends the procedural law which governs the
trial. In a common law court, the defense of contributory
negligence is a complete bar to a recovery, in an admiralty
court the defense is only partial.

In Belden v. Chase, 150 U. S. 674, this Court squarely
held that the rule of contributory negligence in common
law courts is altogether different from its application in
the admiralty court. The Court affirmed that at common
law, contributory negligence is a complete bar, whereas, in
admiralty, it merely causes a division of damages. At
page 691, this Court said:

‘‘The doctrine in admiralty of an equal division
of damages in the case of a collision between two
vessel when both are in fault contributing to the col-
lision, has long prevailed in England and this country.
The Max Morris, 137 U.S. 1. But at common law the
general rule is that if both vessels are culpable in
respect of faults operating directly and immediately
to produce the collision, neither can recover damages
for injuries so caused. Atlee v. Packet Co., 21 Wall.
389.

‘‘In order to maintain his action, the plaintiff was
obliged to establish the negligence of the defendant,
and that such negligence was the sole cause of the
injury, or, in other words, he could not recover, though
defendant were negligent, if it appeared that his own
negligence directly contributed to the result complained
“"

The rule has been consistently followed. It has not been
confined to collision cases.

13

In Guerrini v. U. S., 167 F. 2d, 352, an injury case, the
Court of Appeals for the Second Circuit re-affirmed the
doctrine of the Belden case. The Court said:

‘‘Moreover, whether the defense (of contributory
negligence) is total or partial depends upon the
forum.”’

See:
In re Pennsylvania R. Co., 48 F. 2d 559;
Johnson v. United States Shipping Board Emer-
gency Fleet Corp., 24 F. 2d 963.

Thus, the Court of Appeals in the instant case not only
refused to follow this Court’s holding in Belden v. Chase
(supra) but disregarded its own decision.

CONCLUSION

For the foregoing reasons this petition for a Writ
of Certiorari should be granted.

Respectfully submitted,

Grorce A. Garvey
Counsel for Petitioner
99 John Street
New York 38, N. Y.

February 23, 1951.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0576%3A1. Public record. Not legal advice.