Opposition Brief — Overseas Tankship Corp. v. Keen

IN THE

Supreme Court of the Gnited States

Octoser Trem, 1951.

No. 749.

Guy B. Keen,

Plaintiff-Appellee,

against

Overseas TaANKSHIP CORPORATION,

Defendant-Appellant.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

POINT Il.

By statute appeals to the Supreme Court from a

Circuit Court of Appeals can be only from final judg-

ments or decrees. It is well settled that an order grant-

ing a new trial does not dispose of the case but leaves it

open to the party to retry his case, and such an order is

not appealable.

A judgment or decree to be final for this purpose must

so terminate the litigation between the parties on the

| merits, that if there should be affirmance in the Federal

Court, the Court below would have nothing to do but to

execute the judgment or decree which it had already

rendered. Judgments or decrees which do not measure

up to this standard are those which award a new trial.

Tracy vs. Hilcombe, 24 How. 426;

Horton vs. Moore, 3 Wheat. 433;

BS toe

2

Ranken vs, Tennessee, 11 Wall. 380;

Johnson vs. Keith, 117 U.S. 199;

Schlosser vs. Hemphill, 198 U. S. 174;

Scott vs. Booth, 253 U. S. 475;

Gospel Army vs. City of Los Angeles, 331 U. 8.

546;

Slaker vs. O’Connor, 278 U. S. 188.

In Schlosser vs. Hemphill (supra), Chief Justice Fuller

wrote:

‘*By its judgment the Supreme Court of Iowa

reversed the decree of the Trial Court and remanded

the cause. ‘For further proceedings in harmony

with the opinion of this Court.’

We have heretofore held that a judgment couched

in such terms is not final in such a sense as to sustain

a writ of error from this Court.’’

In Collins v. Miller, 252 U. S. 361, Mr. Justice Brandeis

wrote:

‘*But this Court has jurisdiction on writ of error

and appeal under that section as under others, only

from final judgments. McLish v. Roff, 141 U. S. 661;

Heike v. U. S., 217 U. S. 423.”’

Mr. Justice Frankfurter wrote later in Republic

National Gas Co. at 334 U. S. 72:

‘Thus, the requirement of finality has not been

met merely because the major issues in a case have

been decided and only a few loose ends remain to be

tied up—for example, where liability has been deter-

mined and all that needs to be adjudicated is the

amount of damages, Bruce v. Tobin, 245 U. S. 18;

Martinez v. International Banking Corp., 220 U. S.

214; Mississippi C. R. Co. v. Smith, 295 U. S. 718.

On the other hand, if nothing more than a ministerial

act remains to be done, such as the entry of a judg-

FRIED OSCR TERI ES LION NILE NETTLES ROM EM SANE SRR NTO MGR MCN ica —

3

ment upon the mandate, the decree is regarded as

concluding the case and is immediately reviewable;

Typie Canoe County v. Lucas, 93 U. 8. 108; Mourer

v. Fletcher, 114 U. S. 127.”’

This rule of finality dates back to earlier decisions.

Baker v. White, 2 Otto 176; Philips v. Gardner, 1

McArthur 165, held that the judgment of a Circuit Court,

reversing that of the District Court and ordering a new

trial is not final, or reviewable on appeal.

Under section 22 of the judiciary act of 1789 error does

not lie from a judgment of a Circuit Court reversing with

costs a judgment of a District Court; such a judgment is

not final.

Mayberry v. Thompson, 5 How. 121.

A decree of a Court of Appeals in favor of plaintiff but

remanding the case to an inferior Court for further pro-

ceedings is not final, and no writ of errors lie to the

Supreme Court.

Pepper v. Dunlap, 5 How. 51;

Winn v. Jackson, 12 Wheat. 135.

By the standards of all cases cited it is obvious that

there has not been a final judgment since the Court of

Appeals awarded a new trial. In addition:

1. The full question of unseaworthiness has not

been litigated as yet.

2. Plaintiff’s damages consisting of a compound

comminuted depressed fracture of the skull with bone

fragments piercing the brain have not been assessed.

3. Many important records that were offered in

evidence and were erroneously excluded have not yet

appeared in the record.

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4. Request for punitive damages which the lower

Court refused to consider and charge has not been liti-

gated. As will be seen infra, this is a most important

element,

5. Mruczinski was defendant's principal witness.

Without his testimony a verdict in favor of the defend-

ant could not stand. There is no question from records

now available that he made a fraudulent claim against

the Government according to the Veteran's records

and that he fraudulently concealed important testi-

mony.

As the basis for jurisdiction, petitioner states:

‘although the order of the Court of Appeals is

not a final judgment, it presents important questions

of law and issues fundamental to the further conduct

of the case.’’

United States v. General Motors Corporation,

323 U. S. 373, 377;

Land v. Dollar, 330 U. S. 731, 734. |

Support for this statement is to be found in the

authorities cited in support of this petition.”’

My this bit of verbal legerdemain, petitioner expects

Ss +. traneform jurisdiction of the Supreme Court into an open

«esame where jurisdiction has been firmly limited.

Hach term of Court brings the many who have to be

turned away because of the statutory limitation. The

reasons are We assume in most instances sound but do not

appreciate the statutory limitation. (Parenthetically, it

may be added, we too had to learn the hard way in a case

several years back, that this rule is stringent.)

The above cases which petitioner uses as the basis of

jurisdiction are needless to say rare exceptions where the

TO REI PER ES Be EEE PASE haa PR Ie eS RA AL AY SC Oss

interest of the United States was involved. Further, in

those cases there was no question that the matter had to

be retried in many details. Here, petitioner uses the lan-

guage of ‘‘fundamental to the further conduct of the case’

as the basis of jurisdiction, and with this opening wedge,

then seeks to overturn the opinion of the Court of Appeals

with the hope that once certiorari is secured, that there

never will be a new trial.

There is nothing to prevent a re-trial of all the issues,

so that this Court will then be in ‘a position to finally deter-

mine the matter. Petitioner’s cost of re-trial is minor

since its defense consisted except for medical testimony

almost entirely of depositions which it can re-read. As for

the medical testimony, most of this was cumulative since

it was merely a repetition of medical reports and hospital

records made in the regular course of business, which plain-

tiff had offered in evidence.

But because of the serious injuries to the plaintiff, we

will now go into the case to show that on the merits, peti-

tioner should not have certiorari under any circumstances,

Kee RENR Se se) ee eed ew Maes aac cc

POINT II.

A. + .

Petitioner is misleading this Court when it states

that the issue of insanity was raised but by one small

isolated ruling. The opening address of the plaintiff

to the jury which devoted a substantial part to the

insanity of Mruczinski put the petitioner and the Court

on notice as to plaintiff’s claim for indemnity based on

Mruczinski’s insanity and the proof of insanity to be

offered.

The Court specifically ruled shortly after the trial

was begun in answer to an exception taken by plaintiff

that thereafter exceptions need not be taken to adverse

rulings.

During the trial when the Court suppressed evidence

bearing on Mruczinski’s insanity and in effect over-

ruled what it had previously ruled in plaintiff’s opening

address, it was fully aware that the rulings were adverse

to plaintiff’s principal contention in the case.

The following is part of plaintiff’s opening address to

the jury with specific reference to the insanity of Mruczinski

which the plaintiff expected to prove.

(Pages 3-7):

‘‘From Texas City they went to the Philippines—

they went to England and then they went to the

Philippines. During that time Mruczinski, the

second cook and baker, our proof will show, turned

out to be a quarrelsome type. He started to have

fights aboard ship. He was inclined to the point

where insanity should have been expected of this

man. He even told members of the crew about the

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7

insanity. Now we say that if the officers on that ship

did not know that they had an insane man aboard

that vessel, that they should have known.’’

‘*Now that leaves us with three propositions, any

one of which we claim will leave liability on the

defendant. You must bear in mind, ladies and

gentlemen of the jury, that when a crew is picked,

those men are under articles; they no longer have

the right to say ‘I won’t ship with this man; I won’t

ship with that man.’ They depend upon the company

and the officers to supply a seaworthy vessel and a

seaworthy crew; and an insane man is not a sea-

worthy crew or any part of it... .

While they were on this ship, this man appeared

dirty, slovenly, as an insane man is, and even talked

of insanity about his family. ...

and his background is going to be the most impor-

tant part of the presentation in our case, because

we are going to show you that the man was insane,

and if we prove to you that this man was insane, we

are going to expect a verdict.... '

Now the reason he gave the right number but the

wrong avenue, had they gone down there and made a

check, as I have done, they would have come upon

certain other facts. Those facts would have shown

that they had, as I said, an insane man. There is no

question that the sister,—they would have learned,

was an inmate of an asylum——

Mr. Burke: Just a moment, your Honor, I will

object to that kind of opening statement as highly

inflammatory and not within the issues of this law

suit. Mr. Fogler: It is definitely within the issues.

The Court: Overruled. Mr. Burke: I respectfully

except. Mr. Fogler: They would have found out

about the sister, that that type of insanity which she

had, schizophrenia paranoia, and she has been an

inmate of an insane asylum. They should have

started to inquire about this man, but no such thing

took place.’’

8

“‘had got into many arguments because of the

insamity from which he was suffering and under the

delusions’’

‘‘Now all this is consistent with the delusions

with which this man suffers. The sister has the same

thing, schizophrenia, and this man has the same

thing. And on board ship he was under the delusion

that Keen owed him money, and we will show you

that Mruczinski thought he won a lot of money and

we will show you that he could not win any money;

but he labored under the delusion that he won money

in a card game on the ship, which is permitted by the

company, and if the card game had been going on,

the officers should have stopped it,’’. . .

(Page 10):

‘*And I want you to hear what he suspected about

this man’s insanity after working with him, and the

reports that he made—and Smith says that he

reported this man’s insane condition to the steward,

because at one time Mruczinski took a knife and

threatened him. And another instance, just before

Keen got hit in the head, Mruczinski had taken a gun

im a bar in the Philippines and shoved it into Smith’s

ribs, and when he came’’...

(Pages 14-15):

‘Now, we come before you and we ask you to

take these facts into consideration and if you find

the insanity and if you find that the release that they

executed at a time that they should not have executed

any releases, that you will find a verdict in behalf of

the plaintiff for whatever amount that you feel that

the damages are that will compensate him not only

for the damages but for the pain and suffering and

for everything else.

I think that is the substance of what we expect

to prove. Thank you.

PRP SH SBE IER AD FEES ILE SL) IE ORG KALIL LIEN REECE LORIN Le OEE RD EBS ELEN EOP TASH ee

POINT II.

Petitioner by misleading the Court of Appeals that

no exception was taken to the erroneous portion of the

charge, succeeded in having this read into the opinion.

Petitioner now seeks to mislead this Court when it knew

that portion of the charge was taken bodily from peti-

tioner’s request No. 2 to charge and that the Trial Court

granted a specific exception and even made sure that

the exception was reserved after the charge.

The request to charge reads: Defendant’s Request to

Charge, (p. 1064):

‘*2. The defendant was under no duty to inquire

or examine into the physical or mental condition of a

prospective employee, nor was the defendant an

insurer of the physical or mental condition of a

prospective employee or fellow servant.’’

(On p. 1071):

“The defendant’s counsel, likewise, is granted

an exception to the Court’s refusal to charge as

requested in all of the 15 requests except, of course,

No. 2, and plaintiff’s counsel is granted an exception

to the Court’s granting of request No. 2 on behalf of

the defendant.”

The exception above given was preserved by the Court

at the conclusion of the charge. (Page 1173 of the Record,

page 25 of the Appendix) :

“The Court: Now, gentlemen, without restating

exceptions to the Court’s rulings on your requests to

charge, you may note on the record your exceptions

to the Court’s charge as given.”

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The following at page 27 of the Minutes and Record

shows that the Court almost at the start of the trial granted

the plaintiff an exception to every adverse ruling during

the trial without having to repeat ‘‘I respectfully except’’.

**Q. Can you tell us about his actions with rela-

tion to fighting and what his habits were?

Mr. Burke: Just a moment. I will object to it if

your Honor please.

The Court: Sustained. ‘

Q. Well, tell us about Johnny and his ways and

his personality and the type of boy he was? A.

Brawling——

Mr. Burke: The same objection.

The Court: Sustaired. Strike out the answer.

Mr. Fogler: I respectfully except.

The Court: Under the rule you have an exception

to every adverse ruling during the course of the

trial.’’

POINT III.

A.

It would be unfair to the seaman to permit this case

to be reviewed at this time where Judge Hand with a

unanimous Court ruled that because of rules of evi-

dence peculiar to the law of the State of New York, the

trial judge had made erroneous rulings in failing to

admit records bearing on Mruczinski’s insanity.

Especially unfair would it be where Mruczinski was

defendant’s principal witness and was not permitted to be

impeached by said records.

Since Mruczinski appeared as a witness only by deposi-

tion taken several weeks before the trial plaintiff was

a

ES.

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deprived of the opportunity of showing him to the Jury

for the maniac that he was instead of the hero and veteran

he was not. Because of the fraudulent concealment by

Mruczinski at the time of taking the deposition which can

be shown through the Veteran’s Records, the defendant

does not deserve to profit from this fraudulent testimony

which the second trial will show in detail. Defendant’s

chief witness will be thoroughly discredited so that the

Court will be in a position to reject his testimony in its

entirety.

Without Mruczinski’s testimony, a verdict in behalf of

defendant could not stand up.

Judge Learned Hand wrote:

‘‘The plaintiff’s effort throughout his case was

to show that Mruczinski had been a drunken, dirty,

quarrelsome seaman, who was inherently dangerous

and habitually had possession of deadly weapons.

This line of inquiry the plaintiff tried to extend to

showing that he was actually insane; and the evi-

dence on that issue became entangled in the rules—

some of them peculiar to the New York decisions—

relating to the proof of insanity. Although the

issue of insanity was relevant to Mruczinski’s fitness,

the plaintiff was of course limited to competent

evidence; and, if nothing had appeared in the record

beyond a few erroneous rulings on the competency

of some of the evidence proferred, we should scarcely

think it right to reverse’’ (p. 553).

Since the plaintiff’s counsel stated he would prove

Mruczinski’s insanity, the showing that the assailant used

a meat cleaver to split open plaintiff’s head did make

a “‘prima facie’’ case.

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It is common knowledge that combined with the act,

heredity was important to consider. With the showing of

the proferred evidence that the assailant’s family was of

the Jukes type, it is a matter of common knowledge that

the insanity of Mruczinski might have been conclusively

established.

Also because of Mruczinski’s fraudulent concealment,

it was learned only after the trial that while his mother had

been incarcerated in prison and serving time for a felony,

she was adjudged feebleminded and syphilitic, several years

after Mruczinski was born.

The Veteran’s records which showed that Mruczinski

left the service “at the convenience of the Government”,

will also show hospitalization for most of his record enlist-

ment for removal of warty growths on his penis, a condition

commonly associated with syphilis.

Veteran’s records of Mruczinski were not allowed to be

offered in evidence by plaintiff despite the fact that they too

would show fraud practiced on the Government by Mruczin-

ski as well as the collecting of a pension on grounds con-

cocted by the exconvict mother and himself.

The sister whose records were not allowed in evidence

has been an inmate of an insane asylum for several years

suffering with the same type of homicidal paranoia. Her

level of intelligence from previous work records at Western

Electric where the assailant worked is about the same as

the brother.

The father whose record was not allowed in evidence

has been arrested and convicted over 40 times.

All this is set forth to show that the proof that Mruczin-

ski was thoroughly incompetent has a firm foundation, and

medical testimony should have been permitted to connect

up heredity with his condition.

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POINT III.

B.

Certiorari would be unfair at this time without a

retrial of all the issues because it was not known until

after the trial that the reason why the entire steward’s

department was incompetent according to the over-

whelming evidence in behalf of the defendant was

because the defendant was interested only in getting

about 40 of the American surplus tankers which it had

placed under the Panamanian flag across to the Orient

where the Americans were replaced by Chinese who

brought high octane gasoline and oil to the Communists

(Exhibit A).

Several days after the trial it was learned through pub-

lished reports by the State Department the basic facts were,

that Texas Company, in partnership with Standard Oil

of California, did purchase about 40 of the latest type T2

tankers from the United States Government. After said

purchase they were immediately put under the Panamanian

flag. American crews were recruited in New York to sail

these tankers from New York to Shanghai where they were

replaced by Chinese and then flown back to New York,

where they would subsequently repeat the same operation

in defendant’s employ.

All officers, including the Master, were aliens.

The officers signed articles giving them rights for per-

sonal injury only under the laws of Panama.

Separate articles were signed by the Americans which

in effect gave them rights under the American Flag for

personal injury and death.

The reason that the above is so important is that at the

new trial the seaman will show that the shipowner did hire

with a reckless disregard of the health and safety of its sea-

14

men because its sole intent was to reap the benefits of

millions of dollars from this type of transaction. Ship-

owner’s intent, as in days of old, was to recruit the crew

regardless of danger (insurance covered the shipowner’s

risk of damage to its investment). It cared not one wit that

the lives and health of the crew would be menaced by a

homicidal maniac. That is why it took Mruczinski from

jail in Texas City at the time of the Texas City explosion and

put him aboard this tanker carrying high octane gasoline

and it wants this court to say that the crew should have no

compensatory protection from the acts of a madman

recruited by the shipowner because the shipowner found it

convenient and highly profitable to close its eyes in select-

ing a crew. It now urges this doctrine of voluntary blindness

as a means of circumvention of duties consistent with its

conduct in placing 40 American tankers under the Pana-

manian flag to reap benefits of the U. S. and avoid liability

under our laws.

Judge Hand wrote:

“It would be a strange doctrine indeed that puts

hull and gear above the health and safety of the sea-

man and fixes a much higher degree of responsibility

for hull and gear on the shipowner than on the lives

of the men who work both.”

This doctrine of unseaworthiness as applied in this case

invokes no greater responsibility than the Jones Act has

already done. In truth unseaworthiness has always made

the proof difficult. But once unseaworthiness is established

it rightfully holds the shipowner to full responsibility.

Actually it was to avoid the difficulty of proving a case

of unseaworthiness in behalf of seamen that the Jones

Act was passed.

The average case relies on the Jones Act for a single

careless act on the part of a fellow servant which causes

injury.

In the case at bar plaintiff had to show a course of con-

duct and was relegated to proof that was far more difficult.

The problem was indeed knotty and weighty. Plaintiff

15

had to prove that the fellow servant was insane or so

deficient in all his work that he was totally unsuited to do

his job.

Plaintiff chose to prove that the fellow servant was

insane. That this proof is far more involved than the

average Jones Act case needs no comment. Nor can we

see how this doctrine is going to expose the shipowner to

any undue burdens. If the American Merchant Marine has

so many insane seamen manning our ships, needless to add

that the American Merchant Marine will fold under the

weight of incompetence and not because of the rule of law

promulgated by the Court of Appeals.

We conclude as to this that the Court of Appeals has

not changed its own previous decisions in cases of assault

nor did it change the law of other circuits.

The Court has merely restated what was inherent in

decisions dealing with assault aboard ship, namely, that a

vessel with an insane member of the crew is unseaworthy.

The ship is unseaworthy if said member is totally

unsuited for the work and is thoroughly incompetent where

he is a second cook, where he habitually arms himself with

dangerous weapons, is so filthy that in four months he was

not known to change his clothes even when he retired,

seldom in 4 months if ever bathed, spoke about insanity

in his family, was quarrelsome and had fights, and then

split plaintiff’s head open with the sharp end of a meat

cleaver, under circumstances that if death had ensued,

would have been murder in the first degree.

The Court held under the circumstances the shipowner

has not fulfilled the right of a seaman to have the ship-

owner furnish him with a seaworthy ship and crew. A

fellow seaman under articles can neither go home nor can

he be expected to jump overboard to avoid contact with an

insane crew member.

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POINT IV.

The opinion is in line with the law expressed in tl

Second Circuit as well as the Third and Ninth Circuit

There is no conflict. In fact it closely follows the rece:

Spellman case of the Third Circuit Court of Appeals

To ascribe to Judge Learned Hand, Chief Jud;

Swan, and Judge Augustus Hand who have made tl

most substantial contributions to the admiralty law, a

intent to overrule that eminent court’s own decisio!

without a forthright statement to that effect is mere!

unthinkable. The opinion written with customar

thoroughness and erudition delves into every authorit:

A.

To show unseaworthiness due to an incompeter

captain in line with the Spellman case in the third ci

cuit, and unseaworthiness due to incompetency of th

entire steward’s department in line with the nint

circuit, we call attention to Point II-B and Point Il-

of our Brief in the Court of Appeals, as follows:

On defendant’s own testimony and indeed the basi

of its defense that the assault aboard ship arose out o

gambling aboard ship, the vessel was unseaworth;

because the proof showed that the captain was not com

petent since he permitted full scale gambling to con

tinue, and enforced no discipline, and when advisec

that Mruczinski had taken a gun and put it into a crew

member’s ribs shortly before the assault on the plain

tiff he did not even investigate the facts surroundins

the gun incident.

Spellman v. American Barge Line Co. (infra)

Murphy v. American Barge Line Co. (infra).

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LEILA AES OER OMI OO INE te a Sf LEER PIC AE RS MOS

17

(a) No qualifications of the Captain were shown other

than that this was the first white crew that he had since

1943.

(b) He specifically admitted that the only crew that he had

handled were Indians and Chinese whom he preferred.

‘*694. Q. Do you remember, while in Manila,

Smith reporting that he had been threatened by

Mruczinski with a gun in the Yellow Bar at Manila.

A. I remember someone talking about that. They

were all drunk and Mruczinski grabbed a gun from

a policeman.

Q. Did someone wake you up to tell you about it?

A. No. It was during the day that someone was talk-

ing about it.

699. ...I just heard the story as a rumor.”’

He admitted that in London, two messmen and a utility

man all from the Steward’s Department contacted the

American Consul and tried to get off because of the Steward

but it might have been because of the Steward and Mruc-

zinski,

(c) Although there is some question as to the exact time

when he heard the rumor that Mruczinski had put a

gun into Smith’s ribs a fair reading of the deposition

disclosed that it must have been prior to the time of the

assault upon Keen.

It is to be borne in mind that the deposition was taken

in Africa by the defendant on May 4th, 1951 pursuant to a

notice had April 27, 1951 and that the trial was started on

May 16, 1951 although the Action had been started on

September 29, 1949 by the service of the Summons and

Complaint.

It is also very significant that the deposition was not

certified until the 5th day of May, 1951 at Mombasa, Africa.

Obviously by the time of certification and the time when it

would be received in the United States practically no time

_— had elapsed before the trial had begun.

Ft ait 52 ner ELAS: PRIEREE NI SAORI DIS ARTY RE NESS AUER ET EL REA. SAARI TEA

18

It is submitted that where the defendant prefers to take

a deposition by so vital a witness as the Master that no

ambiguity should be reserved in its favor. It would be

unjust to hold otherwise since the plaintiff on the eve of

trial in New York and served with such short notice cannot

be expected to take any risks which the defendant’s tardi-

ness has occasioned.

If there was any ambiguity as to the time which a fair

reading of the deposition would indicate that the notice to

the Master of this incident was prior to the assault upon

plaintiff, that ambiguity should be resolved against the

defendant who took the deposition under these circum-

stances.

It is unnecessary to decide this point since a fair reading

of the deposition certainly discloses that all parties were

talking about the time prior to the assault in question; other-

wise it is quite obvious that learned counsel selected by the

defendant would have made a strong issue of the fact that

the notice did not come to the Master’s attention until after

the assault.

Cc.

Aside from plaintiff’s overwhelming evidence even

on defendant’s own testimony the unseaworthiness due

to an incompetent steward’s department was fully

established. The testimony by deposition of the stew-

ard, the master, and Mruczinski established that not a

single, solitary member of the steward’s department

was competent.

(a) Steward testified that the two messmen and the util-

ity men were inexperienced (pp. 715, 716).

**A. There was one Italian lad on there, a mess-

man. I never asked him. But I figured he was prob-

ably making his first trip to sea. He just didn’t

seem to know his way around on the ship. A couple

19

of other messmen that were even younger than he

was—(Page 717) I figured if they had been to sea

before, it couldn’t have been more than one or two

trips, just by their movements and actions around

the vessel.’’

(b) The Captain had testified that he recalled that the

messman and the utility man wanted to get off the ship

in England because of the Steward and it could have

been because of the Steward and Mruczinski (694).

(c) Mruczinski, the second cook, stated that the reason he

made the trip was to get some experience so that he

could get into the Union (Page 748).

(d) According to Mruczinski, messman Smith with whom

he had a fight didn’t give the men good service. This

fight was right near the Captain and the Steward

stopped it. It was then stated that the Captain and

the Steward stopped the fight (Page 795).

(e) The testimony of Mruczinski was that he had to do the

work of chief cook Donald Smith who was drunk.

(f) As to Mruczinski, suffice it to say that the entire record

shows his incompetency and certainly the act of split-

ting a man’s head open with a meat cleaver speaks for

itself.

(g) We add nothing to the obvious incompetence of defend-

ant’s representatives who after the assault put plain-

tiff and Mruczinski in the same room together and put

them aboard the same plane to travel some 7,000 miles

together.

Thus the defendant’s own testimony leads to the ines-

capable conclusion that the entire steward’s department

was incompetent, with the result that unseaworthiness was

completely established.

POINT IV.

D.

To show that the opinion is in accord with the pre-

vious opinions of the Second Circuit, we refer the Court

to Point I D of our Brief in the Court of Appeals.

“Aside from the reasons advanced as to an inquiry

into the sanity of Mruczinski as a witness the trial court

erred in ruling that ‘the sanity of Mruczinski was not

under inquiry in this lawsuit.’

As a matter of law a seaman who is insane aboard

a tanker transporting high octane gasoline is a source

of peril to those who sail with him rendering the vessel

unseaworthy.

Where the seaman is a second cook and the over-

whelming weight of testimony shows that he was taken

from jail by the port captain in Texas City at the time

of the explosion, and that he was filthy at the time, and

that during the entire time on the voyage to Manila,

consuming some four months, he wore the same dirty

shirt, pair of unmatched socks, shoes with one shoelace;

talked about insanity in his family, never combed his

hair or shaved, even slept in the one dirty set of clothes,

never washed; did not do his work; was drunk from

the time he was taken out of said jail in Texas City a

great deal of the time until the vessel arrived at Manila

where he split open the plaintiff’s head with the sharp

end of a meat cleaver when he was thoroughly intoxi-

cated; had a revolver and a knife under his pillow; had

assaulted a fellow crew member in the steward’s depart-

a

21

ment; had threatened the chief cook with death, had

threatened the third mate with death for no reason; and

that most of the steward’s department saw the consul

and tried to get off the ship because of him, enough

evidence was offered to warrant a full inquiry as to his

sanity and it was therefore error to strike out testimony

of crew members that he was crazy, and that he was

out of his head, and to refuse to permit Dr. Ambler to

testify as to his opinion of the man’s sanity where the

doctor had actually seen him.

The shipowner does not fulfill its duty to furnish a

seaman with a seaworthy crew where it supplies him

with an insane second cook.

Kyriakos vs. Goulandris, 151 F. (2d) 132;

Steamer H. A. Scandrett, 87 F. (2d) 711.

Smoot on the Law of Insanity points out how a visit

to any institution for the treatment of the insane will dis-

close that the cardinal point to be observed about the

insane is the filth which these unfortunates will keep them-

selves in, and the neglected condition of the clothing and

person, all pointing to the existence of an inflamed mind.’’

oa

by

22

POINT V.

To show that substantial justice would not be done

a review at this time and to avoid repetition we

respectfully refer the Court to examination of the entire

plaintiff’s brief and reply brief in the Court of Appeals.

We call attention to Point IA. There we have dealt at

length with the dual role played by Mruczinski the assail-

ant

, and Mruczinski defendant’s principal witness. Sanity

was the subject of the lawsuit. Insanity was also the

principal point in the impeachment of Mruczinski.

“(a) We are reinforced in this conclusion when this testi-

mony is at wide variance with the written reports of the

Master, the First Mate, and an eye-witness, which were

made in the regular course of business and were in the

files of the defendant. Strengthening our conclusions

is defendant’s witness Lucius Collins, claim agent, who

at the time of settlement negotiations had not one word

to say in support of Mruczinski’s apparently newly

fashioned defense.

(b) Aside from the many contradictions in Murczinski’s

(c)

deposition, the description as to the steps which Mru-

czinski took to split plaintiff’s head open with the meat

cleaver would in itself raise a serious question as to

witness’ sanity.

What testimony the Court permitted of witnesses

Shaffer, Phillip, Smith, Barbito and Moore prior to its

final ruling that Mruczinski’s sanity was not in issue

gave abundant independent proof that Mruczinski as

a witness was one whose sanity was in such doubt that

a full inquiry should have been permitted.

In Ellarson v. Ellarson (supra), the Court wrote:

‘The weight of authority seems to be that the

alleged insanity of a witness is a question of fact

ZA

OA

23

and must be tried upon proper evidence, and the

character of the evidence on this question cannot be

different however the question is raised. It is proper

to go into the history of the supposed insane per-

son’s mind, before, at, and after the occurrence and

at the time of trial. Jt is held that though this raised

a collateral issue, which may take a long time to try,

yet if necessary to the full development of the truth,

the party charging insanity is entitled to an oppor-

tunity to prove it if he can.’

In U. S. v. Hiss (supra), Judge Goddard wrote:

‘It is apparent that the outcome of this trial is

dependent to a great extent upon the testimony of

one man—Whitaker Chambers. Mr. Chamber’s cred-

ibility is one of the major issues upon which the jury

must pass. The opinion of the jury—formed upon

their evaluations of all the evidence laid before them

—is the decisive authority on this question as on all

questions of fact.

The existence of insanity or mental derangement

is admissible for the purpose of discrediting a wit-

ness. Evidence of insanity is not merely for the

judge on the preliminary question of competency,

but goes to the jury to affect credibility.’

In Wigmore on Evidence (Vol. 2, see. 932) it is said:

‘The existence of a derangement of the sort

termed insanity is admissible to discredit, provided,

that it affected the witness at the time of the affair

testified to, or while on the stand, or in the mean-

time so as to cripple his powers of recollection.’ ’’

24

POINT VI.

The basic point that Judge Learned Hand decided

was eminently correct—as between the shipowner who

puts an insane man aboard ship and the seaman who

must take the men placed aboard and who has no way

of anticipating an insane man’s conduct, ordinary prin-

ciples of negligence have no application.

A tanker transporting high octane gasoline with an

insane member of the crew taken from jail in Texas

City at the time of the Texas City explosion is unsea-

worthy as to the crew as well as to hull and gear. We

wonder what the insurers would cry if Mruczinski

admittedly taken from jail in Texas City at the time of

the Texas City disaster, had caused the ship to be blown

skyward because of his insanity?

We also wonder how on page 12 the petitioner can talk

about its concern for American labor when it purchased

American ships at a discount, placed them under Pana-

manian registry and replaced American crews with Chinese.

Its defense was just as consistent.

Respectfully submitted,

Henry Focter,

Counsel for Respondent.

la

Appendix A.

ond Pe

Amended Complaint.

UNITED STATES DISTRICT COURT,

SoutTHerN District or New York.

Guy B. Keen,

Plaintiff,

against

Overseas TANKSHiP CoRPORATION,

Defendant.

Sirs:

PLEASE TAKE Notice, that upon the trial of the action the

plaintiff will move to amend the complaint as follows:

Eicutu: That defendant did purchase from the United

States Government about 40 modern type tankers, and all

were put under the Panamanian flag registry so that

American seamen who were signed thereon had no benefits

of U. S. Marine Hospital treatment for illness or injuries

suffered in its employ, and that in order to transport said 40

modern type tankers to the Orient with cargoes of oil and

high octane gasoline, where the entire unlicensed American

personnel aboard ship would be replaced by Chinese at far

lower wages and lower working condition, the defendant

in order to reap the benefits of this inequitable transaction,

did hire plaintiff’s crew members with a wilful and wanton

disregard of his life and limb, and did hire an unseaworthy

crew, and did hire an incompetent master and officers, who

were aliens and did neither understand the Americans as

to proper discipline nor did they make any such effort to

enforce discipline, since their primary concern was merely

ony Se Py

2a

to deliver said tankers to the Orient where the said Ameri-

cans would be replaced by Orientals under whose command

the said alien officers were accustomed to working, and

that as a result thereof, the master and the officers did

cause and permit gambling for large stakes to continue for

many hours of the day, and instead of the men getting rest

and relaxation during periods off watch, tempers were

caused to flare, and/or grievances on the part of crew

member Mruczinski were caused to precipitate arguments

which resulted in the said assault upon plaintiff; that

defendant in wanton and wilful disregard of the health and

safety of the plaintiff, did persist in keeping in its employ

said Mruczinski, and in fact did take said Mruczinski from

jail in Texas City, at or about the time of the Texas City

explosion, along with Mruczinski’s ‘‘buddy’’, one Tetter-

ton, when it knew that said vessel was to transport oil and

high octane gasoline to the Orient, and said conduct did

render the vessel unseaworthy as to hull, gear, and person-

nel; that since the plaintiff did not know from any provable

source about the transaction with the United States Govern-

ment until several days after the first trial, when full details

were published in the New York World Telegram on June

4th, 1951, a photosatie copy of which is attached herewith,

as to the reasons for wantonly and wilfully hiring an unsea-

worthy crew, he was prejudiced at the first trial in his

inability to prove the motive for said reckless, wilful, and

wanton hiring and maintaining in its employ of the said

Mruczinski, and with this notice plaintiff serves notice of

intention to seek substantial punitive damages for plain-

tiff’s injuries consisting of a compound, comminuted,

depressed fracture of the skull with bone fragments pierc-

ing the brain, laceration of the brain, infection of the brain

after the first brain operation wherein the scalp caused to

swell over 3 inches, and a second brain operation after air

was injected into the spine and brain to take proper

pneumoencepalograms, wherein a plate was put into plain-

tiff’s skull.

That after the said first assault, plaintiff was rendered

unconscious for about 5 hours after his head was split open

3a

with the sharp end of the meat cleaver, and did suffer

severe and permanent personal injuries for which he was

hospitalized in Manila, and about five days thereafter upon

release of plaintiff from said hospital, he was thereafter

caused to be quartered by the defendant, its officers, agents

and employees, in the same room with the said assailant,

John Peter Mruczinski, on the pretext that they were ‘‘bud-

dies’’, when it knew that either plaintiff would be killed or

further seriously injured by said Mruczinski, who by the

use of said meat cleaver had demonstrated beyond a per-

adventure of doubt insane tendencies, and that because of

said wanton, and wilful disregard of plaintiff’s health and

safety, and while in said room plaintiff was caused to be

further assaulted by said Mruczinski as a result of which he

was rendered unconscious and his injuries were caused to

be further aggravated; and that even then, the plaintiff and

said Mruczinski were transported by plane together from

Manila to New York, the same city where the defendant,

the said American-owned Overseas Tankship Corporation,

had its principal place of business, and even in New York,

the defendant did cause and permit plaintiff and Mru-

ezinski to be quartered together.

NintH: That said aggravation and original injuries

hereinbefore set forth was caused by the carelessness and

gross wanton negligence of the defendant, its agents, ser-

vants and employees and the unseaworthiness of the said

vessel in causing and permitting the plaintiff to be struck

in the manner described; and that in addition to the negli-

gence and wanton misconduct heretofore set forth, in the

complaint and in this notice, and did cause, allow and per-

mit the plaintiff and the said Mruczinski to be together at

times when Mruczinski was intoxicated and did cause plain-

tiff to be struck in the manner heretofore set forth which

did aggravate the injuries inflicted on the first occasion and

the defendant was thus guilty of gross and wanton negli-

gence; in that the defendant, its agents, servants and

employees failed to promulgate and enforce proper and safe

rules under the circumstances described above; in that the

4a

defendant, its agents, servants and employees failed to

take proper precautions in preventing the said second

assault, and further that by reason of said acts defendant

was guilty of negligence as a matter of law, as well as of

fact.

TzntH: That by reason of the foregoing, plaintiff’s

injuries were caused and aggravated and plaintiff claims

punitive and compensatory damages for its negligence and

gross and wanton negligence in the additional sum of

$100,000.

Wuererore, plaintiff demands judgment against the

defendant in the sum of $275,000 as damages, together with

the costs and disbursements of this action.

Yours, etc.,

Henry Focier,

Attorney for Plaintiff,

24 Stone Street,

New York City.

bth

pabetle

5a

Article, Annexed te-Gompieint.

New York Wor.ip-TELEGRAM AND Sun,

Monpay, June 4, 1951

SHIP FLEW PANAMA FLAG

TO DODGE BAN ON OIL

By James Danii,

Scripps-Howard Staff Writer.

WasuHineton, June 4.—The American-owned Overseas

Tankship Corp. confirms that one of its ships, registered

under the flag of Panama, delivered gasoline and Diesel oil

to Hong Kong last February.

This was after the issuance of an order Dec. 8 forbidding

American vessels registered under the U. S. flag to deliver

strategic materials, including petroleum products to Hong

Kong because of the danger of such goods assisting Red

China’s war effort.

W. L. Stine, superintendent and manager of operations

for the tanker company, said his company and a sister

British corporation operate 40 tankers carrying oil to all

parts of the world from the U. S. oil concession at Bahrein

on the Persian Gulf. He said he believed deliveries of

petroleum to Hong Kong were ‘‘infrequent.”’

The Navy here has been declining to make public the

names of merchant vessels observed trading with China, on

the ground that this might embarrass sources of informa-

tion.

The information about the Overseas Tankship Corp.

vessel was disclosed in a clipping from a Hong Kong news-

paper received here.

The paper, the South China Post, on Feb. 10 reported:

‘“‘The Panamanian steamer Cedar Breaks (Capt. Nils

Jespersen) of Caltex (China) Ltd., brought 1856 tons of

petrol and 3332 tons of Diesel oil from Bahrein via Manila

on Thursday.’’

ieee

ieee Lis a

6a

Maritime Administration records list the Cedar Breaks

as having been built in 1944 by the U. S. government. The

tanker was sold after the war to Overseas Tankship Corp.

Thirty-nine other modern-type tankers were bought by

the same corporation. All were put under Panama flag

registry.

(Jim G. Lucas, Scripps-Howard staff writer, recently

reported that Navy patrol planes had photographed hun-

dreds of Panama-flag vessels engaged in trade with China,

many believed by the Navy to be American-owned. )

Mr. Stine was telephoned at Overseas Tankship’s 551

Fifth Ave., New York, headquarters. He said the corpora-

tion is the transporting side of Caltex, the joint corporation

formed by Standard Oil of California and the Texas Co.

to exploit the American oil concession at Bahrein.

Seventeen of the tankers bought from the U. S. govern-

ment have been chartered or sold to ‘‘Overseas Tankship

Corp., U. K.”’ (for United Kingdom), the British sister

corporation.

(9335)