Appendix — Waterman Steamship Corp. v. Triple A Machine Shop, Inc.

.

‘

:

Tripte A Macurne Sxop, Inc.,

WarerMaNn STEAMSHIP CoRPORATION,

- acorporation,

Appendix

United States Court of Appeals for the Ninth Circuit

a corporation,

Appellant

ve. ”| No. 14,268

r Apr. 25, 1955

Appellee.

Appeal from the United States District Court for the

Northern District of California,

Southern Division

Before: DENMAN, Chief Judge, and ORR and

CHAMBERS, Circuit Judges

_ DENMAN, Chief Judge:

Appellant, hereafter the repairer, appeals from a decree

in admiralty holding it liable to appellee, hereafter the

~ shipowner, for negligently causing a fire in the Number

L hold of its steamship, JEAN LAFITTE, while it was at

_ Pier 15 in the harbor of San Francisco, The vessel had

' been loaded in the Number 1 hold on the day before with

_ Army clothing and supplies at an Army dock in the harbor

_ of Oakland, Alameda, California. The negligence found is

3 that the repairer’s two employees, in using an acetylene

' torch to burn off and remove an iron upright welded to

ii

the deck just aft of the Number 1 hatch handled it in such

a manner that its sparks entered through the hatch, into

Number 1 hold and started a fire in bales of the military

clothing wrapped in gunny sacks and thereby damaged

the structure of the vessel.

The repairer contends that the shipowner has not pro-

duced evidence to sustain its burden of proof that the

proximate cause of the injury to the ship was by the

torch’s sparks entering the hold through an aperture, ad-

mittedly the only method by which the torch could have

caused the fire in the gunny-wrapped clothing.

It is not questioned that under and a few feet from

where the torch was used there was an aperture between

the steel hatch coamings and the hatch edge. If not other-

wise covered, sparks could have reached the gunny wrap-

ping of the bales of clothing, that is, assuming the torch

were used so that its sparks were forced towards the

aperture. There is testimony, heard by the court, that

there was an overall covering of the hatch consisting of

three layers of tarpaulin (tarred canvas), the flaps of

which hung down the side of the walls of the hatch to the

deck. It is not questioned that if these were not raised or

the sparks had not burned holes through them, they could

not have entered the hold.

There was testimony also that the hold of this privately

owned vessel had been open late in the previous afternoon

when its loading by some fourteen stevedores was com-

pleted and that the fire could be started by a burning

cigarette butt drepped by one of them. Such smoking was

forbidden by the Army on all cargo vessels in the Army

dock. The stevedore foreman saw no stevedore smoke

oS. we

iii

while he was there during the previous day but stated

that he was absent a part of that time on shore, when a

fire well could have been started by such a dropping of a

burning cigarette butt on the gunny cloth. The testimony

is that a fire so started in the gunny would smoulder many

hours before it burst into flame.

The record is barren of testimony that the tarpaulin

cover of the hatch was raised during the time the torch

was used in its vicinity. Highly significant is the failure

of the shipowner to offer evidence of the condition of the

inside face of the hanging flap of the tarpaulin next to the

repairmen which must have been turned over on top of

the hatch to uncover the aperture through which the

torch’s sparks would have to pass to reach the inflam-

mable gunny sacking beneath. Had the repairmen pointed

the torch in such a way as to enter the hold its sparks

most likely would have shown burning marks on the

tarred inner surface of the flap.

In depositions of the repairer’s two employees who used

the torch, they testified that they used it while on the hatch

side of the steel upright they were cutting, pointing the

torch away from the hatch and that the triple tarpaulin

was at no time raised while they were there. Their testi-

mony that they used the torch pointing it away from the

hatch is corroborated by undisputed evidence that there

was a careful examination of the outside of the tarpaulin

by another witness and that no burned hole appeared on

its tarred surface.

The shipowner contends that the court must have re-

jected all this deposition testimony because the two repair

men testified that the burned clothing was not under where

iw

they were working, while photographs showed it was under

them. However, assuming that this testimony is rejected,

there still is no evidence that the tarpaulin was raised, and

the testimony of another witness that he and other persons

examined the tarred canvas surface and found no spark

holes in it requires the inference that the torch was

pointed away from and not over the hatch and that no

sparks entered the hold.

With the not remote possibility that a long smouldering

fire was started by a burning cigarette butt dropped by

one of the fourteen stevedores and the absence of any

testimony that the tarpaulin was raised we think that the

shipowner did not sustain its burden of proof that the

fire injuring the ship’s structure was started by the use

of the acetylene torch.

The judgment is reversed.

(Endorsed:) Opinion. Filed Apr. 25, 1955.

Paul P. O’Brien, Clerk.

Vv

United States Court of Appeals for the Ninth Circuit

Trrpte A Macutine Suxop, Inc.,

a corporation,

Appellant,

” + No. 14,268

WATERMAN STEAMSHIP CORPORATION,

a corporation,

Appellee.

JUDGMENT

Appeal from the United States District Court for the

Northern District of California, Southern Division.

This cause came on to be heard on the Transcript of

the Record from the United States District Court for the

Northern District of California, Southern Division, and.

was duly submitted.

On consideration whereof, It is now here ordered and

adjudged by this Court, that the judgment of the said

District Court in this cause be, and hereby is reversed,

with costs in favor of the Appellant, and against the

Appellee.

IT IS FURTHER ORDERED and adjudged by this

Court, that the Appellant recover against the Appellee

for its costs herein expended and have execution therefor.

(ENDORSED) Judgment

Filed and Entered: April 25, 1955.

PAUL P. O’BRIEN, Clerk.

vi

United States Court of Appeals for the Ninth Circuit

Excerpt from Proceedings of Tuesday, May 31, 1955

Before: DENMAN, Chief Judge, ORR and CHAMBERS,

Circuit Judges.

Oxper DenyInc PETITION FoR REHEARING

On consideration thereof, and by direction of the Court,

IT IS ORDERED that the petition of Appellee, filed

May.23, 1955, and within time allowed therefor by rule

of Court for a rehearing of the above cause be, and

hereby is denied.

FILEo

Iu the Supreme Cort ?'

OF THE HAROLD B. WILLEY,

Rnited States

Ocroser Term, 1955

No. 176

Waterman SteamsHtp CorPorRATION,

a corporation,

Petitioner,

Vs. .

Trrpte A Macuine Sxop, Inc.,

a corporation,

Respondent.

4

BRIEF FOR RESPONDENT

TRIPLE A MACHINE SHOP, INC., IN OPPOSITION TO

THE PETITION FOR CERTIORARI.

Lioyp M. Tweept,

1000 Merchants Exchange Building,

San Francisco 4, California,

Proctor for Respondent

Triple A Machine Shop, Inc.

James A. QurnBy,

Stan ey J. Cook,

Dersy, Cook, Quinpy & TWEET,

1000 Merchants Exchange Building,

San Francisco 4, California,

Of Counsel.

Statement of the case

The question presented

There is no conflict among the Supreme Court decisions

There is no ‘‘conflict among the circui

Under the standard set down in Rule 52(a), F.R.C.P.,

and the McAllister case, the Court of Appeals correctly

reversed the finding of the Disirict Court

Table of Authorities Cited

Cases Pages

Bornhurst v. U.S., 164 F.(2nd) OD akcactssweseness ss 10

Brooklyn Eastern District ete. v. U.S., 287 U.S. 170, 77 L.

a siaicn beeen cd eetie td eae EA ETS OSES M PERE! 7

City of Long Beach v. American President Lines (9th Cir.,

ampublished) .....-;--sesccrssssscessteerecees tags e"

City of Portland v. Luckenbach SS Co., 217 F.(2nd) 894... ll

Ernest H. Meyer, The, 84 F.(2nd) 496....--++eeeeeereree 9, 10

Fiamengo v. The San Francisco, 172 F.(2nd) 767.....---- 11

Gen. Talking Pictures Co. v. W. Elec. Co., 304 U.S. 175,

82 L. Ed. 1278.....--. eee ee ereeees Pere 5

Hammond Lumber Co. v. Broughton & Wiggins, 299 US.

600, 81 L, Ed. 443....---+++++5 Tenenecenecenneseesenss 10

Hertz v. Consolidated Fisheries (9th Cir. 1954) 213 F.(2nd)

ee pe SRE TNE SE LIAS te! lad all ak ela 1

Kulukundis v. Strand, 202 F.(2nd) 708.....++seeseeeeees 11

Meintsma v. U.S., 164 F.(2nd) OCB. iiss Sxwdin iin tin ial o bine aie 10

McAllister v. United States, 348 US. 19, 99 L. Ed. (Adv.)

| OY eee 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15

National Labor Relations Board v. Amer. Nat'l ins. Co., 343

U.S. 396, 96 L. Ed. 1027.......--sessereeresersst tes 6

National Labor Relations Board v. Pittsburg SS Co., 340

US. 498, 95 L. Bd. 479....---.eeereeerrecsecsss seen 5

Rocona v. Guy F. Atkinson Co., 173 F.(2nd) 661......--+- 10

So. Power Co. v. N. Carolina Pub. Service Co. 263 U.S. 508,

Bo 6. WR GER hua ncecas saa vane eens ss cg eer es enee®

Stetson v. U.S., 155 F.(2nd) 859......-seeeceereecccseres 10

United States v. Johnston, 268 U.S. 220, 69 L. Ed. 925....- 5

Rules

Federal Rules of Civil Procedure, Rule 52(a)..-----+++ 8, 10, 13

Inu the Supreme Court

OF THE

United States

Ocroser TrRm, 1955

No. 176

Waterman Sreamsuip Corporation,

a corporation,

Petitioner,

* ,

Tripte A Macutne Saop, Inc.,

a corporation,

Respondent. :

BRIEF FOR RESPONDENT

TRIPLE A MACHINE SHOP, INC., IN OPPOSITION TO

THE PETITION FOR CERTIORARI.

STATEMENT OF THE CASE.

Petitioner’s statement of the case is correct in its re-

cital of jurisdiction, and in its general outline of the basic

facts. It over-states the evidence relied upon by petitioner

in the trial court, however, and omits to mention the basic

evidence on which the Court of Appeals reversed the Dis-

2

trict Court’s finding that respondent’s negligence caused

a fire in #1 hold of the JEAN LAFITTE. Petitioner’s state-

ment of the case concludes with an erroneous and unwar-

ranted characterization of the ruling of the Court of

Appeals. To complete a fair picture of the case, we offer

the following:

It is yndisputed that, at all times prior to discovery

of fire in #1 hold, the hatch was covered with ‘‘pontoons.”’

These are hollow box-shaped structures of steel laid side

by side on ledges inside the hatch coaming, so that they

fill up the hatch, leaving only narrow cracks between pon-

toons and between the after-most pontoon and the after

coaming of the hatch. (Barkman, R. 17-18.)

It is also undisputed that, at the time the fire was dis-

covered in #1 hold, these pontoons were completely covered

with three heavy tarpaulins, which were then pulled out of

the way in order to lift the pontoons and get at the burning

cargo beneath them. (Doepfner, R. 45-6.) It was conceded

that petitioner arranged for the tarpaulins to be spread

out and examined the day after the fire, and that there were

no holes or burn marks in any of the tarpaulins to show

that sparks from respondent’s operation on deck had gone

through the tarpaulins to start a fire in the cargo. (Miller,

R. 122-3.)

Throughout this case it was respondent’s position that

the tarpaulins covered the hatch during respondent’s work,

so that sparks from the burning operation on deck could

reach the cargo in #1 hold only by burning their way

through the tarpaulins. Since the tarpaulins were found

whole and unharmed after the fire, the conclusion was in-

escapable that respondent’s work was not and could not

have been the source of the fire.

3

Petitioner has contended throughout that the absence

of holes or burns in the tarpaulins is immaterial, because

respondent’s workmen ‘‘must have’’ rolled them back while

they were working, and then replaced them when the work

was finished. The burden of proof on this issue rested on

petitioner, of course, since petitioner alleged that re-

spondent’s negligence caused the fire.

Although petitioner thus had the burden of proof to

show that the tarpaulins did not cover the hatch during re-

spondent’s operations, no testimony to that effect was in-

troduced. Four witnesses testified from personal observation

as to the position of the tarpaulins on the hatch. Petitioner

called the stevedore foreman who had loaded #1 hold, plus

only one witness from all the men who were on the ship dur-

ing the critical times. Respondent called its two employees

who did the work in question. There was no conflict among

these four eyewitnesses as to the position of the tarpaulins.

Respondent’s two workmen who did the job testified

that the tarpaulins covered the hatch when they arrived on

the ship, and that this situation remained the same at all

times before, during and after their work, until fire was

noticed and the tarpaulins were then rolled back to gain

access to the hold. (Eason, R. 81-2, 109, 112; Garrett, R. 128,

137.)

Of petitioner’s two witnesses who testified about the

tarpaulins, the stevedore foreman in charge of. the prior

stowage of #1 hatch testified that, when it was fully stowed,

the pontoon covers were put in place and the tarpaulins

were spread completely over the hatch. (Barkman, R. 15,

18.) Petitioner’s night mate in charge of the vessel claimed

not to have observed respondent’s men at work, but testified

4

that the tarpaulins covered the hatch when he reported for

duty (just before respondent’s work began), and were in

that same position after the work was done and when the

fire was discovered. (Doeppner, R. 26-7, 40-41, 33, 45-6.)

Thus every witness who spoke on the subject at all

agreed that the tarpaulins covered the hatch each time he

saw the hatch, and there was no conflict whatever on that

issue. Hence, respondent’s work could only have caused a

fire in #1 hatch by sparks burning their way through the

tarpaulins and falling down the tiny cracks between the

pontoons into the cargo beneath. It is undisputed that a

careful inspection of the tarpaulins after the fire failed to

disclose a single hole or burn in any of them.

It was on that state of ihe record that the Court of

Appeals very properly reversed the District Court and held

that petitioner had not sustained its burden of proof to

show that the fire was caused by respondent’s negligence.

Petitioner’s statement of the case is erroneous in the

last paragraph thereof in stating that the Court of Appeals

merely re-evaluated the evidence for itself, without finding

that the District Court’s findings were ‘clearly erroneous.”’

The opinion of the Court of Appeals does not purport to

disregard the decision of the District Court, and petitioner

is making a naked assumption when he charges the Court of

Appeals with disregarding the law as to the scope of review

on an admiralty appeal. As we shall point out in our argu-

ment, the Ninth Circuit has for some time followed the

‘clear error’’ rule laid down by this Court in McAllister

v. United States, 348 U.S. 19, 99 L. Ed. (Adv.) 13, and it is

an unwarranted assumption to say that any different rule

was followed here.

5

THE QUESTION PRESENTED.

The petition makes a valiant effort to create or depict

an ‘‘issue of law’’ relating to a conflict among the decisions

as to the scope of review on an admiralty appeal. We will

point out in our argument that there is no uncertainty or

conflict, and that the Court of Appeals for the Ninth Circuit

has consistently followed the rule laid down by this Court

in McAllister v. United States, 348 U.S. 19, 99 L. Ed. ( Adv.)

13. (supra).

Petitioner’s efforts to paint a picture of an important

question of law cannot disguise the fact that its basic ob-

jective is to have the facts reviewed by this Court after the

Court of Appeals very carefully considered them and re-

versed the District Court’s findings for lack of any sub-

stantial supporting evidence. In doing so, petitioner dis-

regards the repeated holdings of this Court that it does

not sit in judgment on questions of fact and conflicts of evi-

dence, and that certiorari does not lie to determine whether

the evidence supports the findings. So. Power Co. v. N.

Carolina Pub. Service Co., 263 U.S. 508, 68 L. Ed. 413.

The rule has been enunciated and applied by this Court

in many cases, including the following:

‘‘We do not grant a certiorari to review evidence

and discuss specific facts.’’ U.S. v. Johnston, 268 US.

220 at 227, 69 L. Ed. 925 at 926.

‘‘Granting of the writ would not be warranted

merely to review the evidence or inferences drawn from

it.’’ General Talking Pictures Co. v. Western Electric

Co., 304 U.S. 175 at 178, 82 L. Ed. 1273 at 1275.

The rule is clearly stated at length in National Labor

Relations Board v. Pittsburg SS Co., 340 U.S. 498, 95 L. Ed.

479, in which this Court refused to consider factual issues

where the Court of Appeals had reversed the findings of

the Board for lack of evidentiary support. In that case the

rule was thus set forth:

‘‘This is not the place to review a conflict of evi-

dence nor to reverse a Court of Appeals because were

we in its place we would find the record tilting one way

rather than the other, though fair minded judges could

find it tilting either way. It is not for us to invite re-

view by this Court of decisions turning solely on evalu-

ation of testimony where, on a conscientious considera-

tion of the entire record, a Court of Appeals under the

new dispensation finds the Board’s order unsubstanti-

ated. On such situations we should adhere to the usual

rule of noninterference where conclusions of Circuit

Courts of Appeal depend on appreciation of circum-

stances which admit of different interpretations.’’ 340

U.S. 498 at 503, 95 L. Ed. 479 at 482-3.

That case was quoted and reaffirmed in National Labor

Relations Board v. American National Insurance Co., 343

U.S. 395, 410; 96 L. Ed. 1027, 1040.

Let us now turn to the ‘‘legal issues’’ which petitioner

attempts to raise.

ARGUMENT.

I.

THERE IS NO ‘‘CONFLICT’’ AMONG THE

SUPREME COURT DECISIONS.

Petitioner quotes the recent decision in McAllister v.

U.S. 348 U.S. 19, 99 L. Ed. (Adv.) 13, and contends that,

since earlier decisions referred to an admiralty appeal being

7

a trial de novo, ‘‘clarification and settlement by this Court

is required.’? The McAllister case is clear, positive and

definite as to the scope of review in an admiralty appeal, and

it is difficult to see how this Court could ‘‘clarify’’ that which

is already clear as crystal. Without intending to be facetious,

we suggest that petitioner is, in effect, arguing that a ‘‘no

smoking’’ sign should be clarified to read ‘‘positively no

smoking.”’

Petitioner cites Brooklyn Eastern District Terminal v.

U.S., 287 U.S. 170, 77 L. Ed. 240 (decided in 1932) as hold-

ing that an admiralty appeal is a trial de novo, and cites

earlier decisions of this Court to that effect. Although the

rule was so stated, it never meant that the appellate court

disregarded the trial court’s decision and retried the case

anew. On the contrary, it was always the law that the dis-

trict court’s decision was presumptively correct, and should

be reversed only when clearly against the weight of the

evidence.

Whatever may have been the exact scope and effect

of the rule laid down in decisions prior to 1932, this Court’s

decision last year in McAllister v. U.S., 348 U.S. 19, 99 L. Ed.

(Adv.) 13, has clearly settled the law, and, if it differs from

the earlier decisions, hes overruled them to that extent. No

‘‘clarification’’ is needed of this Court’s pronouncement in

McAllister that:

‘‘In reviewing a judgment of a trial court, sitting

without a jury in admiralty, the Court of Appeals may

not set aside the judgment below unless it is clearly er-

roneous. No greater scope of review is exercised by the

appellate tribunals in admiralty cases than they exer-

cise under Rule 52(a) of the Federal Rules of Civil

Procedure.’’

8

Rule 52(a), F.R.C.P., provides that findings of fact

shall not be set aside unless clearly erroneous, and that due

regard shall be given to the opportunity of the trial court to

judge the credibility of the witnesses. With this Rule and

the clear statement in the McAllister case, this Court has

clarified and settled the law as to the scope of review in an

admiralty appeal. Earlier decisions are superseded, to the

extent, if any, that they are in conflict with the McAllister

decision, and the latter controls. No further ‘‘clarification

and settlement’’ is possible or is necessary.

—_——

IL.

THERE IS NO “CONFLICT AMONG THE CIRCUITS”’

TO BE SETTLED AT THIS TIME.

Petitioner cites and quotes earlier decisions from vari-

ous Circuits in an effort to show that they do not agree as

to the scope of appellate review of admiralty findings, and

that the Ninth Circuit is somehow out of line. Petitioner’s

alleged ‘‘differences’’ are differences of form, not sub-

stance, and are chiefly based on variations in language

which merely express the same rule in different ways.

In recent times all Circuits have followed the same

general rule, but have stated it in different words with vary-

ing emphasis. Where all the testimony was in open court,

the appellate court has sometimes stressed the presumption

in favor of the District Court’s findings because of its su-

perior opportunity to judge the witnesses’ credibility. In

others, where much of the testimony was by deposition, the

appellate court has emphasized its duty to review the entire

record and its power to reject clearly erroneous findings.

Such differences in expression merely present the two sides

9

of the same coin, and do not evidence a disagreement as to

the fundamental rule of review.

If there ever was a real difference among the Circuits,

this Court’s pronouncement in the McAllister case has com-

posed the difference and set forth clearly and succinctly the

rule which is to prevail in all admiralty appeals. Thus the

so-called need for a ‘‘settlement’’ among the Circuits no

longer exists. The rule has already been ‘‘settled and clari-

fied’’ in the McAllister case.

Nor is it fair to say that, in this case, the Ninth Circuit

ignored the District Court’s decision, or failed to follow the

correct rule as to scope of review. Petitioner is hopefully

assuming something here, merely because the Court of Ap-

peals did not preface its opinion with another statement of

the rule. The Ninth Circuit has repeatedly expressed the rule

which it applies in reviewing findings in an admiralty ap-

peal, and there was no need for the Court of Appeals to do

so again. It did not say that it was departing from its set-

tled rule, and it must be taken that the Court of Appeals

followed and applied the same principles which it has con-

sistently observed both before and after its decision in this

case.

The Ninth Circuit has steadily followed the rule which

the McAllister case announces, and mere variations in the

language used to express the rule do not indicate any change

in the rule, itself.

The Ernest H. Meyer (9 Cir.), 84 F.(2nd) 496, decided

in 1936, expressly states that the trial court’s findings in an.

admiralty case will not be disturbed unless ‘‘clearly against

the weight of the evidence.’’ That case, and later decisions

of the Ninth Circuit, do point out that the weight to be given

the findings of the trial court is lessened where part of the

10

testimony below was by deposition. This does not clash with

the McAllister case, but is in harmony with that part of Rule

52(a), F.R.C.P., which refers to ‘‘the opportunity of the

trial court to judge of the credibility of the witnesses ...’’

Where deposition evidence is concerned, the trial court has

no greater opportunity to appraise credibility than does the

appellate court.

In The Ernest H. Meyer case, the losing party sought

certiorari on the ground, among others, that the appellate

court had applied the wrong standard of review and was

not in harmony with other circuits. Certiorari was denied

sub nom. Hammond Lumber Co. v. Broughton & Wiggins

Nav. Co., 299 U.S. 600, 81 L. Ed. 443 (No. 463, Oct. term,

1936).

Subsequent to The Ernest H. Meyer decision in 1936,

the Ninth Circuit has repeatedly held that findings of the

lower court will not be set aside unless clearly erroneous,

and that the findings are to be given special weight when

based on testimony in court by witnesses whose credibility

could better be appraised by the trial judge.

‘‘The findings are supported by substantial evi-

dence, are not clearly erroneous, and hence should not

be disturbed.’’ Bornhurst v. U.S. (9 Cir. 1947), 164 F.

(2nd) 789, 790; Meintsma v. U.S. (9 Cir. 1947), 164 F.

(2nd) 976, 977, and Stetson v. U.S., (9 Cir. 1946), 155 F.

(2nd) 359, 361. :

‘“The testimony was all given orally in the pres-

ence of the Trial Court and if the findings are sup-

ported by substantial evidence and are not clearly

erroneous, they should stand undisturbed on this ap-

peal.’’ Rocona v. Guy F. Atkinson Co. (9 Cir. 1949), 173

F.(2nd) 661, 663.

‘The findings are supported by substantial evi-

dence, are not clearly erroneous, and hence are accepted

il

by us as correct.’’ Fiamengo v. The San Francisco, (9

Cir. 1949), 172 F.(2nd) 767, 768.

‘*To the extent it is urged that the District Court

resolved the factual issues against the weight of the

evidence, we are limited in the scope of our review by

the general rule in admiralty proceedings that the find-

ings are not to be disturbed where they are supported

by substantial evidence and are not clearly erroneous.”’

Kulukundis v. Strand (9 Cir. 1953), 202 F.(2nd.) 708,

709-10.

‘‘TIn an admiralty case in which all the testimony

is oral the findings of fact are presumptively cor-

rect, and being supported by substantial evidence, we

accept them.’’ Hertz vs. Consolidated Fisheries (9 Cir.

1954) 213 F.(2nd) 801, 803.

Petitioner cites City of Portland v. Luckenbach SS Co.,

(9 Cir. 1954), 217 F.(2nd) 894, as if it somehow weakened

the rule of previous cases. That decision was written by a

District Judge sitting pro tem, who used different phrase-

ology. The case as a whole, however, shows that the Ninth

Circuit refused to disturb the lower court’s findings because

it did not find them clearly erroneous. Thus the opinion

says, in part:

‘‘On the whole, after going over the entire testi-

mony, we think that the question of negligence and the

related matters of causation and last clear chance were

very close questions. Assuming that Luckenbach had

the burden of proof, the evidence taken favorably in

behalf of Luckenbach supports the trial judge. Close

as the questions on the facts seem to be, we have no

firm conviction or definite belief that he was wrong.

Therefore, we do not disturb his findings.’’ 217 F.(2nd)

at p. 898.

That the Ninth Circuit recognizes and follows the McAl-

lister rule is demonstrated in its very recent decision, not

12

yet published, in Long Beach v. American President Lines

(#13,972 in the Ninth Cireuit, decided June 14, 1955; to

appear in 222 or 223 F.(2nd.)—). That case was an ad-

miralty appeal in which the findings below were attacked

as erroneous. Judge Chambers, speaking for the Court of

Appeals, thus recognized the McAllister decision:

‘“‘The ghost of trial de novo in this intermediate

appellate court has been laid to rest with finality in

McAllister v. U.S., 348 U.S. 19.”’

And, later in the opinion:

““Sifting the evidence, we arrive at a place short

of an abiding conviction that the trial judge was clearly

erroneous in his conclusions on negligence. We do think

if we had had the opportunity to see and hear Capt.

Wilson and Capt. Halvorsen we would have had little

trouble arriving at a conclusion as to which had over-

rationalized the experiences of the day. The trial court

could take its choice.”’

That opinion was written by J udge Chambers, who also

participated in the decision of the case at bar. We consider

it proper to say that, during oral argument of this case

before the Court of Appeals, the McAllister case (decided

after the briefs were filed in the Ninth Circuit) was cited,

quoted and called to the attention of the Court of Appeals

by petitioner’s counsel. The Court of Appeals judges who

were hearing the oral argument noted the citation, and

Judge Orr commented that this appeared to be the same rule

which the Ninth Circuit had been following for some time.

Petitioner’s counsel stated that this was correct.

Petitioner is now hopefully asking this Court to assume

that the Court of Appeals disregarded its own previous

holdings and the holding of the McAllister case, although

all those considerations were brought to its attention, and

13

although the opinion does not state that the trial court de-

cision is disregarded or given less than the proper weight

and consideration. It is not necessary for a Court of Ap-

peals to restate the rule as to its scope and power of re-

view in every opinion it writes. The rule exists and is ap-

plied. It need not be repeated in every decision, and did

not have to be stated here. It was obeyed, and that is

enough.

Iil.

UNDER THE STANDARD SET DOWN IN RULE 52(a), F.R.C.P.,

AND THE McALLISTER CASE, THE COURT OF APPEALS

CORKECTLY REVERSED THE FINDING OF THE DISTRICT

COURT.

Petitioner’s last point attempts to re-argue the facts,

but omits to mention or comment on the evidence which we

have pointed out in our statement of the case. The material

evidence, on which the Court of Appeals reversed the Dis-

trict Court finding of causation was this:

There were four witnesses who had seen #1 hatch at

various times. Two of them saw it during the respondent’s

work, one saw it at the conclusion of the prior loading, and

the fourth saw it just before and just after respondent’s

work was done. All four agreed that the hatch was covered

with three tarpaulins every time they saw it, and there was

no conflict among them on that point. No one testified that

the hatch was ever uncovered before the fire. Petitioner did

not call any of the other men on the ship, although others

were there.

On the day after the fire, before reloading was even

begun, petitioner went to the trouble and expense of having

the pontoons replaced in #1 hatch and the tarpaulins spread

14

over the pontoons, so that the tarpaulins could be examined

for holes. The mere fact that petitioner arranged for this

inspection shows that petitioner knew the tarpaulins had

been in place during respondent’s work. If this were not

true, the ‘‘post mortem’’ examination was a complete waste

of time, since the presence or absence of holes would mean

nothing if the tarpaulins had been rolled back during re-

spondent’s operation.

By the uncontradicted evidence of all four eye-witnesses

and petitioner’s failure to call other available witnesses, and

by the admission implicit in petitioner’s arranging for ex-

amination of the tarpaulins the next day, the tarpaulins

covered the hatch at all times, and sparks from respondent’s

work on deck could set fire to the cargo only by burning

through the tarpaulins and falling, still alive, through the

crevices between pontoons onto the cargo.

It being conceded that no burns or holes were found in

the tarpaulins, obviously respondent’s work did not cause

the fire.

On that state of the record the Court of Appeals prop-

erly reversed for lack of evidence to sustain the essential

finding. The Court of Appeals did not merely evaluate the

testimony differently from the District Court, and did not

reach different conclusions as to credibility of witnesses,

but found that there was no evidence to support petitioner’s

burden of proof. As the concluding paragraph of the Court

of Appeals’ opinion puts it:

‘‘With the not remote possibility that a long

smouldering fire was started by a burning cigarette

butt dropped by one of the fourteen stevedores and the

absence of any testimony that the tarpaulin was raised,

we think that the shipowner did not sustain its burden

15

of proof that the fire injuring the ship’s structure was

started by the use of the acetylene torch.’’ (p. iv of

suppl. to Petition)

CONCLUSION.

The alleged ‘‘conflict among the circuits’’ is not a con-

flict at all as to the scope of review in an admiralty appeal,

but merely a difference in phraseology, at most. If there

ever was any disagreement, the decision of this Court in

the McAllister case has settled the dispute and has clearly

laid down the rule to be followed. No further ‘‘clarification’”’

or ‘‘settlement”’ is required. The Ninth Circuit has followed

that same rule for many years, and has expressly recognized

the McAllister statement of the rule in its latest decision.

Thus there are no legal questions presented, of any sort.

Petitioner seeks merely to have this Court review the facts

of the particular case. That the petition for certiorari should

be denied is

Respectfully submitted,

Lioyp M. Tweept,

Proctor for Respondent

Triple A Machine Shop, Inc.

James A. QuINBY,

Strantey J. Cooxr,

Dersy, Coox, Qutnspy & Tweepr,

Of Counsel.

Dated, San Francisco, California,

July 15, 1955.