Petition for a Writ of Certiorari — Duluth Steamship Co. v. Allied Chemical & Dye Corp.
Supreme Court brief1956
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IN THE | HAROLD § Fy,
Supreme Court of the United States
OCTOBER TERM, 1955
No. * 7
Bruce Cox,
Plaintiff,
—against—
Dvuittn StTeaMsuHip Company,
Defendant and Third-Party
Plaintiff-Petitioner,
—against—
ALLIED CHEMICAL & Dyk CorPoRATION-SEMET
Sotvay Division,
Third-Party Defendant-
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF NEW
YORK, APPELLATE DIVISION, FOURTH DE-
PARTMENT.
JOHN M. AHERNE
| Counsel for Petitioner
: 99 John St.
: New York 38, N .Y.
BicHaM, Enauiar, Jones & Hovston
Of Counsel
99 John St.
New York 38, N. Y.
4
195
ema fA Ne AN LEON ce IP SE pO BAM DRE AOE EI LSS hr As BOO CLE OA AD Se NE AO OTE
INDEX
PAGE
DD TOT a bc avertuvddvkcn decree senevedes igen 2
PE ic cbRs Oddine Hphenbhnneaumuubes been sede 2
Questions Presented for Review ...............244- 3
The Statute Which the Case Involves .............. 4
i ee et ere Pee pry eee er 4
The Contract and the Accident ..........cccccccces 6
The State Court Proceedings ...............2-e000. 10
Reasons for Granting the Writ ................0.- 12
The courts of the State of New York have decided
a federal question of substance in a way
which is not in accord with the applicable
decisions of this court, particularly with
Ryan Stevedoring Co. Inc. v. Pan-Atlantic
Steamship Corp., decided January 9, 1956,
(350 U. S. 124). The Ryan case announced
a significant and far reaching rule of law
regulating the rights and liabilities as be-
tween vessel owner and contracting stevedore.
The judgment at bar is a clear deviation from
the rule of the Ryan case and should be re-
viewed and reversed by this court in the in-
terest of preserving uniformity in the en-
forcement of maritime contracts .......... 12
tere em a I Eee CaaS neNE Amen | 19
Avvo bi dace ee CPt reten een eT |
OLR. wade VRP i nd
Demi peal Bia LAW Grete deceith asl tie a?
Sneek ie Tab IDA Dy ad SY saat Se pT bt Riley on
Badass wx
ORO FEO IR ae “U4
ii
Appennix A:
PAGE
Order of the Appellate Division of the Supreme Court
of the State of New York Fourth Judicial Depart-
es BO PO oo sia v ew dcsseves veces la
Order of the Court of Appeals of the State of New
I Keke deUN Ch ecdamertbawaavad 4 rekdceonsvecs> 3a
Order of the Appellate Division of the Supreme Court
of the State of New York Fourth Judicial Depart-
ment, dated Mareh 7, 1956 ......ccccccccccccece Da
Order of the Supreme Court of the United States ... 8a
Aprenpix B:
Excerpt from the Contract Between Duluth Steamship
Company and Allied Chemical & Dye Corpora-
tion-Semet Solvay Division ..................+. 9a
Excerpts from Testimony as Printed in the Record
on Appeal to New York Supreme Court, Appel-
late Division—Fourth Judicial Department .... 10a
Cases Crrep:
Alaska Steamship Co. v. Petterson, 347 U.S. 396 ...3, 15
Brady v. Southern Railroad Co., 320 U.S. 476 ...... 17
Fireman's Fund Indemnity Co. vy. U. S., Sth Cir., F.
nat ce eens bi a céodekbewk ence ex seaueks 17
Garrett vy. Moore McCormack, 317 U. S. 239 ........ 12
Great Northern Ry. Co. v. Wiles, 240 U.S. 444 .... 17
Hloffmann v. King, 160 N. Y. 618 ..............4... Si
Se ON, BO Ie a OO pe eccdccserivccccccces 17
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 ........ 12, 15
ee ——
iii
Baey V, Agwittnes, 206 NM. FT. BOB . 0... ccccccccevcs 18
Ryan Stevedoring Co. Inc. ¥. Pan-Atlantic Steamship
Corp., 350 U. 8. 124 ...3, 6, 11, 12, 13, 14, 15, 16, 18, 19
Seas Shipping Co., Inc. v. Sicracki, 328 U. 8. 85 ..3, 15,17
U. S. v. Arrow Stevedoring Co., 9h Cir., 175 F. 2d
MY Seed aaleeda aCe inb ek sd ckeKdad cdots sien. 17
U.S. v. Rothschild International Stevedoring Co., 9th
ean Ma UE Ck os Bau huaibse od vue te eens 17
Orner Avruontrizs Crrep:
Federal Longshoremen’s and Harbor Workers’ Com-
pensation Act, 33 U. S. C. 901-950 ........ 3, 4, 13, 14
NE EN een ts Sida s Fade baboe punt doneeuk 3,13
Section 905 (44 Stat. 1426) ........ 4, 5, 13, 14, 18, 19
a AE os oc 0 see heuswn re caieueUbadeeks 2
Restatement of Torts ¢ 441, Comment (1):¢ ......... 17
IN THE
Supreme Court of the United States
OCTOBER TERM, 1955
No.
-s
~
Brvcr Cox,
Plaintiff,
—against—
Deuivrn STeAMSHIP COMPANY,
Defendant and Third-Party
Plaintiff-Petitioner,
—against—
Avurep CuemicaL & Dyk CorporaTion-SemMet
Soivay Division,
Third-Party Defendaunt-
Respondent,
La
) ”
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF NEW
YORK, APPELLATE DIVISION, FOURTH DE.-
PARTMENT.
To the Honorable the Chief Justice and Associate
Justices of the Supreme Court of the United
States:
Your petitioner, defendant and third-party plaintiff
in the state court, prays that a writ of certiorari be
issued to review so much of the final judgment of
oure---- 2 2 LAPLAND es LLL CO Oe AE ig tL OE Ot ee — eon me .
to
the Supreme Court of the State of New York, Appel-
late Division, Fourth Department, as affirmed the
judgment of the Trial Term of the Supreme Court
of the State of New York, dismissing the third-party
complaint, entered in the County of Erie. Motion for
leave to appeal to the Court of Appeals of the State
of New York was duly made and denied,
Opinions Below
No opinions were written by any of the New York
Courts. The order of affirmance of the Appellate
Division, Fourth Department, is reported at 286 App.
Div. 947, and the order of the Court of Appeals deny-
ing leave to appeal is reported at 309 N. Y. (No.
863) ii.
Jurisdiction
The order of the Supreme Court of the State of
New York, Appellate Division, Fourth Department,
affirming the Trial Term, was dated and entered the
14th day of July, 1955. The order of the Court of
Appeals of the State of New York denying leave to
appeal was dated and entered the 13th day of October,
1955.
On January 3, 1956, petitioner’s time to file a peti-
tion for writ of certiorari was duly extended, by an
order of Mr. Justice Harlan, to and including the
12th day of March, 1956 (App. A, p. 8a).
The jurisdiction of this court is invoked under 28
U. 8. C. 1257(3), viz., the general maritime law of
the United States as properly applicable to the right
— PPA DAP EE EEL I A eS ee en
of a vessel owner, held liable for personal injuries ,
sustained by an independent longshoreman aboard
the vessel on navigable waters of the United States,
to recover in contractual indemnity against the em-
ployer of the longshoreman, where the latter, being
insured in accordance with Federal Longshoremen’s
and Harbor Workers’ Compensation Act, 33 U.S. C.
901 et seq., pleads his compliance with such Act as
a complete bar. The basie question was recently be-
fore this court in Ryan Stevedoring Co. Ine. y. Pan-
Allantic Steamship Corp., decided January 9, 1956,
390 U. 8. 124.
Questions Presented for Review
1. Where the owner of cargo makes a written
agreement with the owner of a vessel, for carrying
coal, and agrees that it (the cargo owner) will load
and unload all the cargo without charge to the carry-
ing vessel, must not the cargo owner (under Ryan
Stevedoring Co. Inc. v. Pan-Atlantic Steamship ¢ ‘orp.,
300 U.S. 124) so conduct the loading and unloading
operations as to avoid the creation of dangerous con-
ditions aboard the vessel which cause injury to its
employees, and in consequence impose liability upon
the vessel owner for unseaworthiness under the doc-
trine of Seas Shipping Co. Inc. y. Sicracki, 328 U. 8.
8) and Alaska Steamship Co. y. Petterson, 347 U.S.
396.
2. Where the longshoremen employed by the cargo
owner to unload the coal spill coal on the deck, and
the vessel owner is held liable for injuries to a long-
shoreman who admitted he saw the coal and knew it
Was a danger, is the vessel owner (absent an express
bes ee.
4
agreement of indemnity in the written contract) en-
titled to reimbursement from the longshoreman’s em-
ployer for the damages which it has been required
to pay the longshoreman.
The Statute Which the Case Involves
The statute involved is that part of the Longshore-
men’s and Harbor Workers’ Compensation Act, 44
Stat. 1426, 33 U. S. C. 905, reading as follows:
**§ 905. Exclusiveness of liability. The liability
of an employer prescribed in section 904 of this
chapter shall be exclusive and in place of all
other liability of such employer to the employee,
his legal representative, husband or wife, parents,
dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer
at law or in admiralty on account of such in-
jury or death, except * * *”’
Statement of the Case
The plaintiff below, a boss longshoreman, employed
by the respondent was injured on navigable waters
of the United States while unloading coal aboard
petitioner’s vessel ‘‘Sylvania’’. He sued the vessel
owner for his injuries in the Supreme Court of the
State of New York, Erie County, claiming negligence
and unseaworthiness. Petitioner impleaded plaintiff's
employer, claiming indemnity for any amount which
it became obligated to pay to the injured longshore-
man. Plaintiff's employer owned the coal carried
on petitioner’s vessel, and by written contract had
5
agreed to load the coal aboard and to discharge it at
destination (App. B, p. 9a).*
The third-party complaint alleges, among other
things, that the plaintiff’s injuries were caused by
respondent’s **breach of the duty to properly perform
the unloading operation’? (59). In its verified an-
swer to the third-party complaint respondent pleaded
various defenses, including the plea that the accideut
was caused by its employee's negligence (72); and
that having provided compensation insurance, it’s
liability was fully discharged; and under 33 U.S. ©.
905, such liability was exclusive of all other possible
liability arising out of the aecident (69-71).
The issnes as between plaintiff and petitioner were
submitted to the jury who returned a verdict for
$100,000 against petitioner (781). The issues raised
by the third-party complaint were (by stipulation
663-666) submitted to the trial court for decision:
and after the jury verdict that court dismissed the
third-party complaint on the merits (22-26). There-
after, defendant’s motions for judgment n. 0. v. and
the alternative motion for a new trial (783, 791-792)
were denied (121-122). An appeal was taken to the
Appellate Division, Fourth Department; and the
judgments and order of the trial court were affirmed
without opinion (App. A, pp. la-2a). Application for
leave to appeal to the Court of Appeals was denied
(App. A, pp. 3a-4a).
The judgment of the trial court. the affirmance
thereof by the Appellate Division, and the refusal of
* Numbers in parenthesis refer to folios of the record in the
court below, unless preceded by ‘*App.”* in which case they refer
to the Appendices to this petition.
6
the Court of Appeals to entertain the appeal, were
all had before January 9, 1956 on which date this court
decided Ryan Stevedoring Co. Inc. vy. Pan-Atlantic
Steamship Corp., 350 U. 8. 124.
The Contract and the Accident
Petitioner is an operator of bulk freighters on the
Great Lakes. It had a contract with the respondent,
Allied Chemical & Dye Corp.-Semet Solvay Division
(hereinafter sometimes called ‘‘Semet Solvay’’), a
manufacturer of coal products, for the transportation
of all respondent’s *twaterborne coal requirements”
to its plant at Harriet, New York. Under that con-
tract (App. B, p. 9a, Ex. 11, pp. 30-37) respondent
agreed to load its cargoes aboard petitioner’s vessel
and to unload them at destination, all without charge
to the carrying vessel; an arrangement obviously re-
flected in the freight rate. The contract further stipu-
lated that ‘‘the unloading operation shall be continu-
ous’? (App. B, p. 9a). As in the Ryan Stevedoring
ease, 350 U. S. 124, the contract contained no provision
expressly agreeing to indemnify petitioner for dam-
ages sustained as a result of respondent’s negligent
performance, or failure to perform, its contractual
obligations.
Petitioner’s vessel ‘Sylvania’? is more than 500
feet long, and has a cargo capacity of some 11,000
tons of coal (App. B, p. 22a). She has four holds
(App. B, p. 22a), aecess to which is obtained through
thirty openings on the main deck called hatches, run-
ning athwartships and numbered from 1 to 30, fore
to aft. The hatch covers are of a telescopic arrange-
ment (197-198), and with hatches open the only deck
PRR mec erramenn z LE AG IA SPL ie COR OD le Sms
~
area visible is that between the hatches—approxi-
mately two feet—and between the hatch covers and
the ship’s rail (App. B, pp. 10a-11a).
The entire unloading operation was under the re-
sponsibility and control of the respondent, Semet
Solvay, and was conducted by its employees. No
ship’s equipment was used (App. B, p. 14a). Plain-
tiff was respondent’s “utility foreman’’, in ‘‘charge
of unloading the boat’? (App. B, p. 10a). The un-
loading gang, and the entire operation, was under his
control.
Respondent’s unloading equipment at its Harrict
N. Y. plant consisted of a large dock-side crane hav-
ing a fixed horizontal boom which projected from
the dock over the ship. Buckets were operated from
this boom. It was ‘ta tremendously fast piece of
equipment”’ (App. B, pp. 20a-21a), and employed two
different sized buckets—first a big bucket and then a
smaller ‘‘clean-up”’ or ‘‘mop-up”’ bucket.
In order to preserve the equilibrium of the vessel
the numbered hatches are not unloaded consecutively,
but every other one from aft forward, and then from
forward aft. Since the horizontal boom from which
the bucket operates is fixed, it is necessary to move
the vessel as required to place the hatch openings
under the up and down bucket. When the ship had
to be moved, plaintiff gave the orders (App. B, p. 15a).
After all hatches have been worked with the big
bucket, the smaller ‘‘mop-up’’ bucket was put to
work, a bulldozer lowered into the hold, and aided by
four or five men with shovels, the remaining coal in
the hatches was unloaded (194-195).
air Neth as eats BA RE ete ceed
Se IC PRE he NRG a
= certs nr san
ss... BO) eed
8
The written contract called for a ‘‘continuous”’ un-
loading operation. It necessitated some sixty-eight
‘“‘shifts’’ of the vessel (App. B, p. 16a). There is a
great deal of ‘‘spillage’’ as the buckets are swung
from the hatches to the dock. Oftentimes the buckets
strike the sides of the hatches (App. B, pp. 21a-22a).
This is because the ‘‘continuous’’ unloading operation
is always a “‘hurry-up”’ job (App. B, p. 21a). They
are ‘‘usually in a strain’’ to get the ship away from
the dock (App. B, pp. 16a-17a). Often there would be
a ship waiting in the stream to unload (App. B,
p. 10a). Sometimes as much as thirty tons may be
spilled on deck (App. B, p. 22a). This spillage could
have been avoided if the stevedore (respondent) had
slowed down the operation (App. B, p. 22a).
The established practice was that the ship’s crew
would eventually clean up the coal spilled on the
deck by the plaintiff and other employees of the
stevedore (App. B, p. lla). However, the final
clean-up would not commence until after the Semet-
Solvay gang starts its mop-up run (App. B, pp. 11a,
19a, 23a) and under the established practice, the
ship’s clean-up crew is always two to three hatches
behind the hatch at which Semet Solvay employees
are working (App. B, pp. lla, 17a, 19a). It would
be unsafe to work any closer (App. B, pp. 15a, 18a).
This clean-up was an ordinary housekeeping opera-
tion for the benefit of the vessel—to make her ready
for the return voyage (App. B, p. 20a), —not for the
benefit of the stevedore.
The ‘‘Sylvania’’ docked port side to (206) at peti-
tioners Harriet N. Y. plant at approximately 11 p. m.
the night before the accident and the respondent ‘*im-
| cropenatis om ney = 7 -_
9
mediately began digging coal’’ (180) under super-
vision of the plaintiff. He worked until 7 o’clock the
next morning (181), and when he returned to the job
in the afternoon the stevedore was ‘‘in the final stage
of mop-up in No, 1 hatch’? (210).
When plaintiff came back aboard he noticed that
the clean-up work around No. 4 and 5 hatches bad
not yet been done (App. B, p. lla), and that this
area had about four bushels of coal spread across
the walk-ways (App. B, p. 1la). He also noted at
this time that the ship’s crew was cleaning up “two
or three hatches back of us’’ (App. B, p. 15a).
The last part of plaintiff’s job in discharging the
vessel was to remove the bulldozer which is always
taken out of No. 5 hatch (206). This required plain-
tiff to walk between No. 4 and No. 5 hatches so that
_ the erane operator could see his hand signals (203,
204, 212-213, App. B, p. 14a). Despite the fact that
the deck space between No. 4 and No. 5 hatches, had
loose coal spread across it, plaintiff went ahead with
the job of getting the bulldozer out without taking
any precaution to clear away the coal. It would
have taken about five minutes to remove the coal
(App. B, p. 12a), but plaintiff did not wait; nor did
he ask the ship’s crew to clean it up. He had the
eargo hook lowered into the hold, where it was at-
tached to the bulldozer (219-220). Plaintiff, stand-
ing between No. 4 and No. 5 and facing aft. directed
the operation. As the crane operator took the slack
out of the cable plaintiff was leaning over the open
hatch pushing the eable off from the coaming. He
was also moving to his left toward the center of
the ship (App. B, p. 12a) signaling to the crane
operator and keeping his eve on the men in the hold.
Oe) ae. ene
10
He testified that as he moved sideways he saw
the coal on the deck (App. B, p. lla). He knew it
was a “‘hazard’’ (App. B, p. 15a). He knew ‘‘it
spelled danger’? (App. B, p. 16a). In fact, he was
‘*kicking this coal out of the way’’, when suddenly
he ‘stepped on this coal’’, ‘slipped and rolled’’ and
plunged through the open hatch into the hold (App.
B, p. 18a).
:
{
‘
q
The State Court Proceedings
Plaintiff’s claim of negligence and unseaworthiness
was grounded upon the vessels allegedly culpable fail-
ure to correct a dangerous condition (coal on deck)
conceded to have been created by respondent in the
course of the performance of its contract obligations.
At the close of the evidence defendant moved for
the direction of a verdict on the grounds that the
evidence raised no issue of fact as to the negligence
on defendant’s part nor as to the unseaworthiness
of the vessel (653). This motion was denied (658),
as was defendant’s motion to submit special inter-
rogatories to the jury. Third-party defendant moved
to dismiss the third-party complaint (647, 659) and
it was stipulated that if questions of fact existed
between the third-party plaintiff and the third-party
defendant they would be decided by the court (663-
665).
The jury returned a general verdict for the plain-
tiff in the sum of $100,000; and the trial court, with-
out opinion, entered an order dismissing petitioner’s
third-party complaint against respondent.
a ee
—
11
It is manifest from the amount of the verdict, viz.,
$100,000, that no finding of, or allowance for, cou-
tributory negligence was made under the comparative
negligence rule as charged by the court. Defendant’s
motion for judgment n. o. v., and its alternative motion
for a new trial were denied.
The appeal to the Appellate Division of the New
York Supreme Court, Fourth Department, was fully
briefed and argued; and that court affirmed the judg-
ment and order appealed from, without opinion (App.
A, pp. la-2a). Petitioner’s application for leave to
appeal to the New York Court of Appeals from the
judgment of the Appellate Division was denied (App.
A, pp. 3a-4a).
After all these proceedings had heen completed in
the courts of the State of New York, and before
certiorari time had expired, this court, on January 9,
1956, handed down its decision in Ryan Stevedoring
Co. Inc. v. Pan-Atlantic Steamship Corp., 350 U. S.
124, establishing a rule of law which petitioner be-
lieves to be controlling in the case at bar. While
awaiting the decision in the Ryan Stevedoring ease,
your petitioner had applied for and obtained an
order extending its time within which to apply to
this court for certiorari until March 12, 1956. After
this court published its decision in the Ryan Steve-
doring ease your petitioner applied to the Appellate
Division of the Supreme Court, Fourth Department,
for a rehearing, basing its application upon the Ryan
Stevedoring case. The Appellate Division denied the
application for rehearing on March 7, 1956 (App. A,
pp. 5a-7a).
~ caatbas tess sneer, |
12
REASONS for GRANTING the WRIT
The courts of the State of New York have decided
a federal question of substance in a way which is not
in accord with the applicable decisions of this court,
particularly with Ryan Stevedoring Co. Inc. v. Pan-
Atlantic Steamship Corp., decided January 9, 1956,
(350 U. S. 124). The Ryan case announced a signi-
ficant and far reaching rule of law regulating the
rights and liabilties as between vessel owner and con-
tracting stevedore. The judgment at bar is a clear
deviation from the rule of the Ryan case and should be
reviewed and reversed by this court in the interest of
preserving uniformity in the enforcement of maritime
contracts.
The question for decision here is the respective
rights and liabilities, as between vessel owner and
stevedore under a maritime contract, arising out of
the occurrence of a maritime tort which (in the first
instance) has cast the vessel owner in damages to
a stevedore’s employee injured aboard the vessel.
The mere statement of the point seems adequate to
establish beyond cavil its substantial federal char-
acter. Thus the State Court was not free to fol-
low its own law. It was bound to follow the rules
announced by this court. (Pope & Talbot Ine. v.
Hawn, 346 U. 8S. 406, 409-410; Garrett v. Moore
McCormack, 317 U. S. 239, 243-246). This the New
York courts failed to do.
In the ease at bar petitioner (as third-party plain-
tiff) pleaded the provisions of its contract with Semet
Solvay, the respondent, and then alleged that ‘* plain-
r
13
tiff’s accident * * * was caused by a breach of the
duty to properly perform the unloading operation on
the part of the third-party defendant, * * *’’ (Third-
party Complaint, fol. 59). All parties conceded that
the dangerous condition on the deck of the vessel
(the loose coal) was caused by respondent, and that
the manner in which respondent unloaded the vessel,
caused coal to be spilled on the deck. Respondent’s
answer to the third-party complaint pleaded ex-
pressly that by reason of its compliance with the
Longshoremen’s and Harbor Workers’ Compensa-
tion Act (33 U. S. C. 901-950) its liability in respect
of plaintiff’s injuries was confined, exclusively, to the
obligation to pay compensation. In its judgment dis-
missing the third-party complaint the trial court made
no findings, nor did it specify any reason for the
dismissal. Certainly if the courts below based their
judgment of dismissal on section 5 of the Longshore-
men’s and Harbor Workers’ Compensation Act (33
U. 8S. C. 905), such judgment is in irreconcilable
conflict with the Ryan case.
The basie factual framework upon which the is-
sues raised by the third-party complaint rested, was
undisputed. Although the owner of the cargo, re-
spondent was acting in the capacity of an independ-
ent, compensated, stevedore whose employees were en-
gaged in the operation of discharging petitioner’s
vessel under a written agreement. To paraphrase
the language of the Court’s opinion in the Ryan
Stevedoring case, such an ‘agreement necessarily in-
cludes (respondent’s) * * * obligation’’ to discharge
the vessel **properly and safely’’. **Competency and
safety * * * are inescapable elements of the service
undertaken. This obligation is not a quasi-contrat-
tual obligation implied in law or arising out of a non-
Be
a eee ES 1 et ar SR AS
me
a aero e
ie
14
contractual relationship. It is of the essence of (re-
spondent’s) * * * stevedoring coutract’’. It is a
‘‘warranty of the workmanlike service that is com- |
parable to a manufacturer’s warranty of the sound-
ness of its manufactured product.”’ Ryan Stevedor-
ing case, 350 U.S. 124, 133-134.
The language last quoted from the yan case clearly
coutrols the case at bar. The obligation of the re-
spondent to unload the coal in such a manner as to
avoid creating a dangerous condition which would
cast the petitioner in damages to respoudent’s em-
ployees is self evident. That being the case the only
construction, possible to place on the decision below,
is that because the judgmeut was rendered before this
court handed down its decision in the Ryan Stevedor-
ing case, the New York courts considered, and decided
(erroneously, as later proved) either (1) that under
33 U.S. C. 905 the exclusive measure of respondent's
liability in the premises was the payment of com-
pensation under the Longshoremen’s and Harbor
Workers’ Compensation Act; or (2) that the non-con-
tractual rule of indemnity, applicable in ordinary tort
situations, viz., active and passive negligence, applied
to this maritime contract for carriage, loading and dis-
charge of a vessel’s cargo. Manifestly, whichever was
the basis of its decision, the Appellate Division decided
a federal question of substance in a way not in accord
with the applicable decisions of this court. The
Appellate Division, given opportunity to reconsider
its decision after the publication of the Ryan Steve-
doring opinion, declined to do so,
Both the court and the jury below regarded the
coal on the deck of petitioner’s vessel as creating a
—
condition of unseaworthiness, for which the vessel
was liable without regard to negligence of fault; just
the same as the defective block in Alaska Steamship
Co. Inc. v. Petterson, 347 U. 8S. 396; as the defective
shackle in Seas Shipping Co. Ine. vy. Sieracki, 328
U. 8S. 85; and as the grain on the deck in Pope &
Talbot, Inc. v. Hawn, 346 U. 8. 406. Thus petitioner,
as vessel owner, became absolutely liable to respond-
eut’s employee, without regard to fault. It is agreed
here, that the coal was spilled on the deck by the
respondent. Thus, the undisputed facts bring this
case within the general fact situation which existed
in the Ryan Stevedoring case.
The framework, factual and legal, of petitioner’s
rights against respondent is in no wise affected by
the claim that petitioner was the one required to clean
the coal from the decks. Petitioner freely admitted,
and testified below, that the eventual and ultimate
duty of clearing the vessel's deck of coal rested upon
it. That was the established practice (App. B, p. 11a).
However it was equally well established that the clean
up did not commence until after respondent's gang
started its final mop up run; and plaintiff (respond-
ent’s foreman) admitted that the ship’s clean up
crew was never nearer than two or three hatches
behind the hatch being discharged (App. B, pp. 11a,
17a, 19a). It would be unsafe for the men to work
any closer because coal was constantly spilling from
the bucket (App. B, pp. 15a, 18a).
Plaintiff’s sole claim, and complaint, against peti-
tioner in the courts below was the fact that the ship’s
clean up gang had not reached No. 5 hatch before
plaintiff got there to remove the bulldozer (App. B,
“ Se a eT
ech a leh ee ae
oe Fae Or «
7
16
p- 374). The “‘nearest cleaning’’ was ‘‘Two or three
hatches back of us’? (App. B, p. 15a), and it would
have taken only about five minutes to clean off that
portion of the deck (App. B, p. 12a), before plaintiff
started to work on it.
This injured plaintiff was the servant, agent and
employee of the respondent on this job. He was the
“utility foreman * * * in charge of unloading the
boat’. His acts, within the scope of his duties, were
the acts of respondent. His men had spilled the coal
and created the dangerous condition on the deck (the
unseaworthiness). Respondent (as personified by its
utility foreman, the plaintiff) recognized that such a
condition ‘spelled danger’? (App. B, p. 16a). He
felt the coal under foot (App. B, p. 13a). Looking
upward, and not in the direction he was moving, he
stepped on the loose coal, tried to kick it out of the
way, slipped, and plunged through the open hatch to
the hold 32 feet below (App. B, p. 13a).
If there was negligence here, as distinguished from
unseaworthiness, it was manifestly the negligence of
respondent in (1) spilling the coal on the deck in
its “hurry to unload” and creating the condition,
and (2) in proceeding, consciously and deliberately,
with the unloading operation in the face of a known
and recognized dangerous condition which (the jury
is assumed to have found) caused plaintiff to fall —
into the hold.
Like the vessel owner in the Ryan Stevedoring case
petitioner here is not barred from recovery against
the respondent merely because its clean up crew had
not yet reached No. 5 hatch. Judged by any stand-
ards of proximate cause, and, according to respondent
17
the full benefit of the most favorable reference rule,
the mere delay of the clean up gang in reaching hatch
No. 5 was not the cause of the plaintiff’s plunge into
the hold. Although proximate cause is usually a ques-
tion of fact, applying the most favorable inference
rule to the undisputed facts in this record, the proxi-
mate cause of this accident, as a matter of law, is the
concatenation of two events for each of which this re-
spondent is solely responsible: (1) the spilling of the
coal on the deck; and (2) the conscious and deliberate
election to proceed with the job in the face of the
known and recognized danger created by such spillage.
Brady v. Southern Railroad Co., 320 U. 8. 476, 479-80;
Great Northern Ry. Co. v. Wiles, 240 U. 8. 444; Laid-
law v. Sage, 158 N. Y. 73, 99; Hoffmann vy. King, 160
N. Y. 618, 628; Restatement of Torts §441, Comment
(1) se.
In U. S. v. Arrow Stevedoring Co., 9th Cir., 175 F.
2d 329, the contracting stevedore knowingly permitted
its men to work under a hatch cover secured upright
by defective dogs, and the accident resulted when the
hatch cover fell. The vessel had become aware of
the condition and arranged to repair it during the
following day shift. Under the Sicracki doctrine the
vessel owner becaine absolutely liable to the longshore-
man. In the vessel owner’s action to recover from the
stevedore the amount for which it had been cast in
damages to the stevedore’s employee, the Ninth Cir-
euit (Denman, C. J.) said that ‘the sole prorimate
cause of the injury to Williams was the negligence of
Arrow in its use of the door with knowledge of its
defects * * *.”’ (p. 331, our emphasis). To the same
effect are Fireman’s Fund Indemnity Co. v. U. S., 5th
Cir., 211 F. 2d 773, 776; U. S. v. Rothschild Interna-
oS tae ER Se et ORR ae
Greenies.
18
tional Stevedoring Co., 9h Cir. 183 F. 2d 181; Riley v.
Aywilines, 296 N,. Y. 402.
Thus no matter in what light this third-party claim
against respondent be regarded, the unseaworthy con-
dition on the deck of the vessel was created by the
respondent, and as was said by Mr. Justice Burton in
the prevailing opinion in the Ryan Stevedoring case:
**Whatever may have been the respective obliga-
tions of the stevedoring contractor and of the
shipowner to the injured longshoreman for proper
storage of the cargo it is clear that, as between
themselves, the contractor, as the warrantor of
its own services, cannot use the shipowner’s
failure to discover and correct the contractor’s
own breach of warranty as a defense.’’ 350 U. S.
124, 134-135.
This petition does not present the bald question
of the relative responsibilities of the parties for tort;
nor, in view of the rule of the Ryan case, does it now
present considerations of active and passive negli-
gence which might be present in a non-contractual
indemnity situation, Petitioner expressly grounded
its third-party complaint upon respondent's con-
’
tractual obligation safely to load and discharge the |
vessel—just as the vessel owner grounded its claim in |
the Ryan Stevedoring ease.
Without warrant in law or fact the trial court dis-
missed petitioner's third-party claim against respond-
ent. Under the undisputed facts of this record, it
could have done so only upon a theory of law contrary
to the most recent expressions of this court in the
Ryan case. If the theory of dismissal was that 33
rl
;
U. 8. C. 905 made compensation payments the exelu-
sive measure of respondent’s liability in the premises,
the judgment is flatly contrary to the first point de-
cided in the Ryan case, and must be reversed.
If the theory of dismis«al was that petitioner’s clean
up operation was slow in getting to the spot, that is
contrary to the second point decided in the Ryan case,
and must be reversed. Such theory might be valid in
an ordinary non-contractual tort situation, but the
facts and pleadings at bar present a ‘contractual
warranty” situation; and since the Ryan Stevedoring
decision, as between vessel owner and stevedore, the
latter cannot use the mere failure to immediately dis-
cover and remedy an unseaworthy condition (created
by the stevedore), as a defense to his breach of con-
tract 350 U.S. 124, 154-155.
Conclusion
The decision below was made before the decision of
this Court in the Ryan Stevedoring case. Ut is grounded
upon an erroneous legal concept of the relative re-
sponsibilities of a vessel owner and contracting steve-
dore, arising out of a maritime contract. The state
court has decided a federal question of substance in a
way which is not in accord with the applicable deci-
sions of thix Court. The Pyan Stevedoring Company
ge
a ee ee ee
20
decision was called to the attention of the state court
on a rehearing application, and the state court declined
to modify its decision. Accordingly this Court should
grant the petition for a writ of certiorari in this case,
and reverse so much of the judgment below as dis-
missed the third party claim against respondent.
Respectfully submitted,
JOHN M. AHERNE
Counsel for Petitioner
99 John Street
New York 38, N. Y.
Bicuam, Encuar, Jones & Hovston
Of Counsel
99 John Street J
New York 38, N. Y.
APPENDIX ©
la
APPENDIX A
Order of the Appellate Division of the Supreme Court
of the State of New York Fourth Judicial Depart-
ment
At a term of the Appellate Division of the
Supreme Court of the State of New York
in and for the Fourth Judicial Depart-
ment, at the City of Rochester, New York,
commencing on the 14th day of July, 1955.
Present—Hon. Francis D. McCurn,
Presiding Justice
‘** Raymonp C. VAUGHAN
** Henry J. KIMBALy
‘* —fR. Foster Piper
** —H. Doveitas Vax Dusen,
Associate Justices
s
>
Bruce Cox,
Respondent,
vs.
Dv_ttH StreamMsuHip Company,
Appellant.
DrittH STEAMSHIP Company,
Third-Party Plaintiff,
Appellant,
Vs.
ALLiep CHEeMicaL & Dye Corroratiox-SEMeT
Sorvay Drv.,
Third-Party Defendant,
Respondent.
¢
‘
,
eS ee ee tN
eae
eel ackt
Seabees,
Brenan
2a
Appendixc A
The above named Duluth Steamship Co., defend-
ant and third-party plaintiff in this action, having
appealed to the Appellate Division of the Supreme
Court, Fourth Department, from a judgment of the
Supreme Court, entered in the office of the Clerk
of the County of Erie, on the 13th day of May, 1954,
and from an order denying defendant’s motion for a
new trial, entered in said Clerk’s office on the 24th
day of May, 1954, and the said appeal having been
argued by Mr. John M. Aherne, of counsel for the
appellant, Mr. Joseph H. Chirlin, of counsel for the
plaintiff-respondent, and by Mr. Arthur E. Otten,
of counsel for the third-party defendant, respondent,
and due deliberation having been had thereon,
IT IS HEREBY ORDERED, That the judgment and order
so appealed from be, and the same hereby are, af-
firmed, with costs.
All coneur.
Enter.
Francis D. McCurn
Entered 14th day of July, 1955
Hersert E. Warr, Clerk.
a
Appendis A
Order of the Court of Appeals of the State of
New York
State of New York
In Court of Appeals
At a Court of Appeals for the State of New
York, held at Court of Appeals Hall in
the City of Albany on the thirteenth day
of October A. D. 1955.
Present—Hown. Abert Conway,
Chief Judge, presiding.
os
> ae
Mo. No. 405
Bruce Cox,
Plaintiff-Respondent,
VS.
DuiutH StreaMsHip Company,
Defendant and Third-Party
Plaintiff-Appellant,
Vs.
ALLIED Cuemical & Dyr CorporaTion-SEMET
Sotvay Drviston,
Third-Party Defendant-
Respondent.
?
ke
i
4a
Appendir A
A motion for leave to appeal to the Court of Ap-
peals in the albove cause having been heretofore made
upon the part of the appellant herein, and papers
having been duly submitted thereon, and due delibera-
tion thereupom had:
Orvered, thiat the said motion be and the same here-
by is denied with ten dollars costs and necessary
printing disbursements.
(Seal)
Greanon KIMBALL
Deputy Clerk
a! Be se ee eee
AAP en . ——
PA wt Be was 0
>
ax
5a
Appendix A
Order of the Appellate Division of the Supreme Court
of the State of New York, Fourth Judicial Depart-
ment
At a term of the Appellate Division of the
Supreme Court of the State of New York
in and for the Fourth Judicial Depart-
ment, at the City of Rochester, N. Y.,
commencing on the 6th day of March,
1956.
Present—Hox. Francis D. MceCvury,
Presiding Justice.
* Raymonp (, Vavanan,
* Henry J. Kimpann,
* Jounx (C. WHeeten
Associate Justices.
»
—_
Braver Cox,
Respondent,
Vs.
Detvrn STreamMsuipe Company,
Appellant.
DcL_vutTH STEAMSHIP COMPANY,
Third-Party Plaintiff,
Appellant,
Vs,
ALurep Cuemical & Dye Corporation-SemMer
Soivay Division,
Third-Party Defendant,
Respondent.
oy
6a
Appendiz A
The above named Duluth Steamship Company, ap-
pellant herein, having, on the 6th day of March, 1956,
duly moved before this Court for an order (1) grant-
ing leave to the defendant-third-party plaintiff-appel-
lant under Rule II of the Rules of this Court to make
a late application for reargument upon proof of spec-
ial reason; (2) granting a reargument herein of so
much of this appeal as relates to the cause of action
set forth in the third-party complaint and upon such
reargument vacating the order of this Court entered
on the 14th day of July, 1955 and reversing the judg-
ment below in so far as it relates to the third-party
complaint and granting third-party plaintiff-appellant
recovery over against third-party defendant-respond-
ent for such sums as third-party plaintiff has become
obligated to pay to plaintiff; or (3) in the alternative,
setting this case down for oral argument at such
time as this Court may direct; (4) or in the further
alternative, and in the event this Court grants a re-
argument and thereafter affirms its order of July
14, 1955 granting leave to appeal to the Court of
Appeals from this affirmance, and for such other
aud further relief as this Court may deem just and
proper,
Now, after reading and filing the affidavit of John
J. Martin, verified the 20th day of February, 1956,
the notice of said motion, together with proof of due
service thereof upon counsel for the opposing party,
and the opposing affidavit of Joseph H. Chirlin, veri-
a
7a
Appendix A
fied the 23rd day of February, 1956, and of Perey
R. Smith verified the 29th day of February, 1956,
and upon all the proceedings heretofore had and
taken herein, and due deliberation having been had
thereon,
It is hereby orverrp, That, the said motion be. and
the same hereby is, denied in all respects,
Enter.
Francis D. McCrre
Entered 7th day of March, 1956.
Hersert E. Warr, Clerk.
OOO AT a Oe A a ee le
freee hee leet GD arate Cet
ald A a I oes eet ea Scie ta Le tere
seers. %
Bases: pith sk Deane
8a
Appendix A
Order of the Supreme Court of the United States
SUPREME COURT OF THE UNITED STATES
No. October Term, 1955
La
>
Brvce Cox,
Plaintiff,
v.
Deieutu StreaMsuie Company,
Defendant and Third-Party
Plaintiff-Petitioner,
v.
Auurp Cuemica, & Dye Corporation-SeMet
Sorvay Division,
Third-Party Defendant.
Orpen Extexpixc Time to Fite Peririon ror
Writ or CEeRrriorani
4
——
Uron consiprration of the application of counsel
for petitioner,
Ir 1s orpernep that the time for filing petition for
writ of certiorari in the above-entitled cause be, and
the same is hereby, extended to and including Mareh
12th, 1956.
Jounx M. Haran
Associate Justice of the Supreme
Court of the United States.
Dated this 3rd day of January, 1956.
Sa
APPENDIX B
Excerpt from the Contract Between Duluth Steamship
Company and Allied Chemical & Dye Corpora-
tion—Semet Solvay Division.
(Reeord on Appeal, Pages 30-37, Exhibit 11)
2.
“All cargoes of coal for our Harriet, N. Y., plant
are to be transported in suitable bulk freighters
owned or operated or chartered either by you, The
Tomlinson Fleet or The Columbia Transportation
Company. All cargoes of coal will be loaded and un-
loaded without charge to the carrying vessel,
‘Delivery shall be made alongside our dock, Har-
riet, N. Y. Vessels shall berth in turn if necessary.
When berthed the unloading operation shall be con-
tinuous. We will make soundings to determine water
depth at our berth as soon as weather conditions
permit and will chart such soundings and furnish
you with a copy of said chart.’’ (91-92).
* * * *
ign i elation © oes Se |
eo eee
ae ete A Seek.
| ae _ eh
.
10a
Appendirs B
Excerpts from Testimony as Printed in the Record on
Appeal to New York Supreme Court, Appellate
Division—Fourth Department.
Note: Figures in parentheses denote page of Ree-
ord,
* * *. *
(47) Bruce Cox, the Plaintiff, called as a witness |
on his own behalf, and sworn, testified as follows:
Direct examination by Mr. Chirlin:
* ” * *
(52) * *& &
Q. Now, as a utility foreman, in 1948, during the
month of August, what would your general duties be?
A. Charge of unloading the boat.
Q. In the winter-time what would your duties be?
A. In various departments of the plant where a man
in a supervisory capacity would be needed.
* * * .
(55) * * &
Q. And about how many boats a week would come
to Senwt Solvay for unloading? A. Two, three, four;
sometimes we would even have a boat laying out in
the channel waiting for one boat to pull out.
* . . *
(61) * * *&
Q. Now, this matter of cleaning the deck on the
boat: with the hatches open, the only part of the deck
as EE eEEEOE————eeV—e
lla
Appendiz B
that would be visible would be the area between the
hatches and along either end of the hatches, up
against the rail of the ship, isn’t that so? A. Yes.
Q. Who did clean up on those boats? A. The mem-
hers of the ship’s crew.
Q. Was that an automatic thing, or did you have
to tell them when to start cleaning up, or just how
did it work? A. So far as I know, that (62) was
something that was understood, and we never spoke
to them about it. They just went right ahead and
did it.
Q. Well, let us assume that your boat has started
to be unloaded, and you are down, from 30 hatch,
down to 20 hatch: where would you expect the clean-
up crew to be? Would they start yet, or be at 30 or
40? <A. They should be cleaning up approximately
two or three hatches behind us. While we were in
No. 10 hatch on the final run, they should be in 7 or
8 hatch.
(71) ** &
Q. Well, when you finally went over between 4 and
5, to take out the bulldozer, can you tell us what the
condition was of the deck between those two hatches?
A. It had coal on it.
. * * *
Q. Now, how much coal was there, if it is possible
to say, in bushels or any possible way you can measure
it? A. Four bushels, I would say.
Appendic B
(72) * & &
Q. Does that shoveling or sweeping take very long?
A. Not too long, no.
Q. About how long would it take to do one little
walk? <A. Five minutes.
* * * *
(74) - ee
Q. And what happens to the cable if you allow it
to smack against the coaming? A. Well, if the cable
smacks against the coaming, it would be torn or
broken.
Q. Was it part of your job to do anything to pre-
vent that? A. To hold that cable off.
(75) Q. And how do you do that? A. By warding
it off with the palm of your hand.
Q. Did you ever grab on it and pull on it, or any-
thing like that? A. No.
Q. Did you have gloves on? <A. Yes. I had gloves.
Q. And were you warding the cable off the coam-
ing, that day the accident happened? <A. Yes.
Q. Tell us again what happens as the slack is taken
out of the cable. Where does the cable go and where
do you go?) The cable is here; you are holding the
cable off from the coaming to keep it from breaking
or being torn. A. Walking towards the center of
the ship.
Q. Were you moving sideways? A. Yes.
Q. And you are moving one—well, it would be
toward your left? A. My left.
Q. What do you do with your left hand: use that
for signals, or what? A. You ean use it for signals
=e Cee ee ee ae
/
Ba
Appendir B
to slow—have the operator slow the cable down, slow
it down a little bit, have it running quite slow before
you put the final load onto the cable, so you don’t have
a sudden jerk which would snap the cable.
* * * *
Q. What were you doing with your right hand just
before this accident? A. Holding the cable off the
steel coaming.
(76) Q. As you were walking along, I assume you
were on coal, in that area? <A. Yes.
Q. How was the footing underfoot? A. Very poor.
Q. Were you doing anything about that, vourself,
as you moved along? <A. I was trying to kick it out
of the way the best I could, without looking at it, and
trying to keep my eye on the operator and the men
down in the hold of the ship.
Q. How far did you get in this operation? Was
the slack actually ever taken out, when you went into
the hold? A. The slack wasn’t out of the cable.
Q. You tell us in your own way why you went into
the hold. A. In walking to my left, walking along,
finding secure footing, kicking this coal out of the
way, I stepped on this coal and that’s all I remember:
I slipped and rolled.
Q. When you slipped on the coal, did the coal move,
or did you move, or what— A. The coal moved.
Q. And you moved with it? <A. I fell forward.
* * * *
See eae | Sartre
Ty
14a
Appendiz B
(78) * & &
Bruce Cox, the Plaintiff, resumed testifying as
follows:
Direct examination resumed by Mr. Chirlin:
* * * *
Q. Why do you go between 4 and 5 over on the
port side? Why can’t you stay on the starboard side,
like you do when you have him up in (79) his regu-
lar cabin? <A. I have to be where I can observe the
men hooking up the bulldozer, and also where the
hoist operator can see my hand signals.
% - * a
(120) * & &
Bruce Cox, the Plaintiff, resumed testifying as
follows:
Cross examination resumed by Mr. Bleecker:
* * * *
Q. Do any of the vessel’s crew participate in the
unloading? A. No, except to shift the boat.
Q. They take no part in the actual unloading, do
they? <A. No.
(121) Q. And no part of the vessel’s equipment is
used in unloading, is it? A. Nothing used to un-
load, no.
* * * *
lda
Appendix B
(122) * & *&
Q. Was this question asked you:
“You instruct the crew if you want to
shift it’’?
A. Yes.
Q. And did you answer:
“That is the only order that we do give to
the crew’’?
A. Yes.
* * * 2
(123) Q. Do you have any safety rules governing
operations? A. Safety rules as governing operation
of unloading ship?
Q. Of unloading: are there any rules that the
company has promulgated? <A. Just to be careful.
Q. One of the principal hazards is that coal, lumps
of coal, will drop from the bucket, isn’t that true?
A. That’s right.
Q. Sometimes that is unavoidable, isn’t it? A.
Yes.
Q. How far away from the bucket do you keep
men—anybody—working? <A. I keep men in the
hold. They would be shoveling up three or four
hatches behind the bucket.
~ + « -
(125) * * *
Q. Where was the nearest cleaning? A. Two or
three hatches back of us.
* * * *
i
;
k
4
;
d
:
ee vin thks Pe RA?
Baatacinee. a aN rae
l6a
Appendis B
(126) * * *
Q. How much coal is likely to be left aboard that —
ship?
Mr. Chirlin: Where, Mr. Bleecker? On the |
deck ?
Mr. Bleecker: On the deck.
A. On the deck?
Q. Yes. <A. In this particular instance, there were,
I would say, four bushels of coal strewn between the
4 and 5 hatch.
Q. On each walk between the hatches, and there
are 30 hatches; and you did not take your own coal,
because the crew should clean it up, is that right?
A. That’s right.
Q. And you don’t care what becomes of that coal
which belongs to Semet Solvay? A. They never have.
Q. They never have cared, you say? A. Evi-
dently.
Q. Now, will you tell us: you went between No. 4
and 5, and you saw this condition, didn’t you? A.
Yes.
Q. And you knew it spelled danger, didn’t you?
A. Yes.
* * * *
(ig) * *°
Q. How many shifts, Bruce, do you have to make
in unloading the ‘*Sylvania’’ with her 30 hatches?
About 68, don’t you?) A. Approximately.
Q. Approximately 687 <A. Yes.
Q. One more or less would not do much harm, would
lia
Appendiz B
it? A. Except it would hold the boat up, and they
are usually in a strain to get it from the dock.
* * * *
(133) * & &
Bart Peters, called as a witness on behalf of the
Plaintiff, and sworn, testifies as follows:
[Peters was a Semet Solvay crane operator.]
* * * *
Direct examination by Mr. Chirlin:
* * * *
(135) * * *
Q. By the way, when the boat cleans up the deck—
the boat crew—in the normal operation, as it usually
would be done, about how far behind, in hatches, if
you can possibly tell us, would they stay from the
men who are unloading the boat?
Mr. Bleecker: I object to the question, your
Honor. He is a crane operator. He (136) just
said he knew nothing about this operation.
Mr. Chirlin: He didn’t say that.
The Court: I will permit him to answer if
he knows. Do you know, Witness?
The Witness: Yes, I do.
The Court: All right. You may answer.
A. Two to three hatches behind.
* * * *
i ashi ies
oe
aw eos
Bianco Teh
=,
18a
Appendix B
Cross examination by Mr. Bleecker:
* * * *
(137) * * *
Q. You say it is custom at Semet Solvay to permit
the crew of a vessel to work two or three hatches away
from your bucket? Is that the custom at Semet Sol-
vay? A. To let what?
Q. To permit anybody to work two or three hatches
away from where you are unloading a hatch? <A. Yes,
they safely work there.
Q. Do you consider that safe? A. Yes.
(). How far does coal fall when it falls out of the
bucket? A. Well, I would say, from the hatch over
to the end—to each hatch on both sides.
Q. In your opinion, it is safe procedure to
(138) permit men to work within two or three hatches
of where your bucket is? A. That is true.
* * * *
(140) * * *
Eimer Hanson, called as a witness on behalf of
the Plaintiff, and sworn, testified as follows:
[Hanson was a Semet Solvay crane operator.]
* * * *
Direct examination by Mr. Chirlin:
* * * *
(143) * * *
Q. Are you familiar with the cleaning of the deck,
as to whether or not they follow along the crew that
unloads the boat? <A. Yes, sir. |
(144) Q. Could you tell us about how far behind,
in hatches, they normally stay, from what you have
noticed? A. Approximately two to three hatches.
* * * Sa
19a
Appendir B
(148) * * &
Further cross examination by Mr. Bleecker:
* . * *
Q. And the clean-up bucket: there is no use of
cleaning up around the hatch before the clean-up
bucket is out of the hatch, is there? A. No, sir.
* * * *
(150) * * *
Peter Suznovicu, called as a witness on behalf of
the Plaintiff, and sworn, testified as follows:
[Suznovich was a Semet Solvay crane operator. ]
* * * *
Direct examination by Mr. Chirlin:
* * * *
(135) * * *
Q. You unload these vessels as expeditiously as pos-
sible, I suppose. A. What is that?
Q. You unload these vessels as quickly as possible?
A. That was the general opinion down there, to get
them out as fast as possible.
* * * *
j
— &
Beaars.. wits
20a
Appendis B
(165) Burris W. Wovrrers, called as a witness on
behalf of the Defendant, and sworn, testified as fol-
lows:
[Wolters was the First Mate on board the ‘‘Sy!-
vania’’ at the time of the accident.]
* * * *
Direct examination by Mr. Bleecker:
a." *
Q. And you have heard the testimony about the
custom of the crew of your vessels removing, cleaning
up the coal on the deck, after the unloading is finished.
Tell the Court and jury what you know about any
such custom. A. Well, since I have been Mate and
Captain of any of the vessels trading down there, it
has been the custom of the ship to clean up the deck,
which is the only dock on the Great Lakes that you
do do that, barring none and including all. I have
asked various foremen and men that work there what
to do with the coal. ‘*Don'’t make any difference.
Throw it over the side. Throw it wherever the hand-
iest place was to throw it,’’ and we cleaned the ship
up for our own benefit, because we had to haul—
rather, our men had to carry hatch cable across the
deck, when it came time to pull the hatches off.
* * * *
(168) Q. Is there anything unusual about this one
at Semet Solvay? A. Well——
Q. I mean, as to stationary or movable? A. It is
a stationary rig. I don’t know of any other one I
have worked on—that is, on coal—stationary such
2la
Appendiz B
as this one; and it is a tremendously fast piece of
equipment.
Q. Have you, in your experience of 22 years—is
it? A. That is correct.
Q. —observed the operation of the various rigs
around the Lakes? A. I have.
Q. Are you familiar with the operation of this
Semet Solvay rig? A. I am.
Q. From your observation, can you tell the Court
and jury the reason for the presence of coal between
hatches—not on the inboard, but can you explain why
you find coal between the hatches the whole length of
the ship? A. Well, it would be—the way they unload
is so rapid, it has always been “hurry up’? down
there; the faster out, the better, and the operators
really move that rig around. It is going and coming,
and it is very, very fast.
Q. And what puts the coal between the hatches? A.
When they drop this clam—I wouldn't say how much
it weighs; I would say in the neighborhood of five
ton, possibly. They dig the bucket in; the bucket
goes down and buries itself, and they are pulling it
out as it is buried, and there is coal spilling out. In
other words, if you fill a tea cup with sugar and
heap it up, it is going to spill. That is what happens
with the (169) coal as they are coming up with it:
coal is just streaming off. On the ‘Sylvania’ we
have to spot perfectly or our hatches will not ac-
commodate such a big bucket.
Q. What you are saying is that the bucket is over-
loaded? A. Always. It is always streaming coal.
Q. Is any spillage caused by the bucket knocking
the side of the hatch? A. Yes, if it hits the side of
the hatch, it will throw off.
ee eee ee re ete SC te emt ke Ce ete. soe kT Oe eer |
7
Appendirs B
Q. Is there any way to avoid striking the hatches?
A. Slower operation.
Q. Can you estimate the amount of coal, Captain,
in an ordinary unloading, that is left on the deck of
the ‘Sylvania’? A. When we clear——
Q. Can you estimate it in amount? A. 30 ton.
Q. Not all at one time, I suppose? A. All at one
time, right from No. 30 hatch, right straight through.
Before we start to shovel, there will be 30 ton between
hatches.
Q. That is what I mean. Approximately 30 tons?
A. That’s right, an average load.
* * * *
Cross examination by Mr. Otten:
* * * *
(170) “* *
Q. This **Sylvania’’: what is her size? <A. 504
fect long.
Q. How wide? A. 54 feet.
Q. How much does she carry? <A. Well, she will
average, depending upon the season and the (171)
depth of water that is allowed her in the Niagara
River, from 10,000 to 11,250, 11,300 tons.
* * * *
(174) ** *
Q. In other words, the decks were all cleaned, ready
to replace hatches? A. The hatches were on 2, 3, 4
compartments.
Q. How many compartments does this boat have?
A. Four.
—
23a
Appendix B
lata
Further cross examination by Mr. Otten:
Q. You said one thing in your testimony, just now,
that makes me wonder. This clean-up operation on
the boat: do you do that several times in the course of
unloading? A. I was mate. I did it just on the
second run back, because there was too terrific spillage
from the clean-up bucket. If there was terrific
spillage from the bucket from, possibly, hitting the
hatch coaming, or overloading the clam, we would
shovel that so we could walk through it.
* * * *
(187) *“* *
Wituiam T. Situ, called as a witness on behalf
of the Defendant, and sworn, testified as follows:
* * * *
[Smith was a Captain, U. S. C. G.]
Direct examination by Mr. Bleecker:
. a * *
(188 ) eo Re
Q. In the course of your experience in 36 years in
Buffalo, Captain, have you had occasion to observe
the operations of the unloading machinery at Semet
Solvay at Harriet? A. Yes, I have.
Q. Are you familiar with the setup? <A. Yes, I
am.
Q. You have heard testimony here regarding spill-
age of coal in unloading the ‘Sylvania’? in 1948.
Have you observed anything at that plant, Captain,
that, in your opinion, accounts for spillage of coal
ee ee oe
24a
Appendis B
in unloading—spillage of coal into the passageways
between the hatches? A. Well, of course, that would
depend on the handling and (189) operation of the
bucket; and there is times, I presume, when I have
been down on there, when they got a little overloaded,
but that is not anything that is unusual; and when
they are drawing it out, some of it spills off back into
the cargo hold again; and then the bucket may swing
over and hit the side of the coaming and some will
spill, off and on.
Q. Is that, in your opinion, proper handling, to
permit the bucket to hit the side of the hatch or to
come up overloaded ?
Mr. Otten: I object to that, if the Court
please. It doesn’t appear this man is qualified
to testify. |
The Court: I think I will permit him to
testify. You have the exception.
Mr. Otten: Exception.
A. It is a matter of—in the operation, it is usually
pretty hard to keep the bucket—uuless you operate
it slow—because that bucket is going to swing, and
while he might have a little tail line on that, which |
he would have to have on or it would be just like.
probably, someone on a flying trapeze, or something; |
but it is one of those conditions that the operator, if
he is fast—and they are, down there, they operate
quite fast; and the only thing that I could say, in my
opinion, from my own experience, is that, if it is
operated a little slower, more careful, it would pre-
vent the excess spillage, if any.
Q. Then spillage does not oceur, is that right? A.
That’s right.
* * * *
IN THE HAROLD B. WILLEY,
Supreme Court of the United States
Octoser Term, 1955
No. 753
BRUCE COX,
Plaintiff,
against
DULUTH STEAMSHIP COMPANY,
Defendant and Third-Party
Plaintiff-Petitioner,
against
ALLIED CHEMICAL & DYE CORPORATION—
SEMET SOLVAY DIVISION,
Third-Party Defendant-
Respondent.
BRIEF OF THIRD-PARTY DEFENDANT-
RESPONDENT OPPOSING APPLICA-
TION FOR WRIT OF CERTIORARI
HAROLD J. ADAMS,
Counsel for Respondent,
705 Walbridge Building,
Buffalo 2, New York.
Artuvur E, Orren,
Of Counsel,
1106 Prudential Building,
Buffalo 2, New York.
SATAVIA TIMES, Law Printeas,
Batavia, TT.
INDEX
PAGE
NEE SS vos ee wey scudsekeecN ash baesa ad ckwe Cs 2
Questions Sought to be Presented .................. 2
ne ee RMON oe ce piniaelnteushe we dees 3
PETA Aas oad suelo hehe e RAW Maw hae wk hed L es ve bab ee )
MSs Coden Cie Paes bees abe cae cies ace 9
Jurisdiction is Not Established .................. i]
Petitioner Failed to Prove the Facts of its Case; it
Failed to Prove that Respondent Breached any
Duty; it Failed to Prove that Plaintiff's Injury
and Petitioner’ s Loss were Caused by any Act
of Respondent; the Proof Affirmatively Showed
that such Injury and Loss were Caused by Peti-
tioner’s Misfeasance in the Performance of its
SIE PRE as cras once pecans Fk ws 11
PE Seu er ett ou os Chas dhe ae re UReie les eae 16
APPENDIX
pg i we Re: er 20
Excerpt from New York Civil Practice Act § 193-a (2) 20
New York Civil Practice Act §588 ................. 17
New York Civil Practice Act §589 ................. 18
Cases Crrep
H. J. Gorman vs. Washington University, 316 U.S. 98 10
Ryan Stevedoring Co. Inc. vs. Pan-Atlantic Steamship
Re, SN sic c Ure as iar iny Vo ks ps60 vs 4
OrTHer AUTHORITIES CITED
EG Oe a ra it wanes Gee ooo wie yins oe be oo 10
Be Ml Ns po od oko dob kb ede wk oe w'enc 3
New York Civil Practice Act §193-a (2) ............ 3
New York Civil Practice Act § 588 ........c0cccceees 9-10
New York Civil Practice Act § 589
IN THE
Supreme Court of the United States
Octoper Term, 1955
No. 753
BRUCE “OX,
Plaintiff,
against
DULUTH STEAMSHIP COMPANY,
Defendant and Third-Party
Plaintiff -Petitioner,
against
ALLIED CHEMICAL & DYE CORPORATION—
SEMET SOLVAY DIVISION,
Third-Party Defendant-
Respondent.
BRIEF OF THIRD-PARTY DEFENDANT-
RESPONDENT OPPOSING APPLICA-
TION FOR WRIT OF CERTIORARI
For brevity, our reference to parties will be:
Plaintiff,_-to indicate Bruce Cox, plaintiff.
Petitioner,—to indicate Duluth Steamship Company,
defendant and third-party plaintiff-petitioner.
oe iv. on
> wae ieee as Dae it al
ey
+ Pape cate ene hn a ele RS
to
Respondent,—to indicate Allied Chemical & Dye Corpo-
ration, Semet Solvay Division, third-party defendant-
respondent.
Jurisdiction
The record filed herein, as indicated by the notice on
Form 75 served upon us by petitioner, fails to disclose
that the judgment sought to be reviewed is that of the
highest Court of the State of New York in which a deci-
sion could be had, and respondent requests that the peti-
tion, therefore, be denied and dismissed.
The judgment sought to be reviewed was reviewable by
the New York Court of Appeals by permission of that
Court or of the New York Supreme Court, Appellate
Division, Fourth Judicial Department, and the record filed
herein fails to disclose that application for such permis-
sion was made.
The matter is discussed in the argument section of this
brief.
Questions Sought to be Presented
The questions which petitioner seeks to present for re-
view do not arise upon the facts established at the trial.
Petitioner failed to prove the facts alleged in his third-
party complaint against respondent and in consequence
no substantial question arises between those parties. This
is not a case of a vessel owner being cast in damages for
injury caused by breach of duty on the part of another or
by unseaworthiness of the vessel without fault of the own-
er; the injury and the vessel owner’s liability therefor
arise from the vessel owner's misfeasance. The only ques-
tion framed by the facts is completely lacking in substance
and is as follows:
apres
Petes yy
3
Where spillage of coal on deck is an unavoidable inci-
dent of unloading bulk coal cargo, and the cargo owner
pursuant to the contract of carriage unloads his cargo and
breaches no duty therein, and the vessel owner cleans up
the spillage and is guilty of misfeasance therein and there-
by leaves a residue of the spillage on deck, and the cargo
owner’s employee in charge of the unloading being free
from contributing fault falls thereon and recovers full
damage from the vessel owner,—is the vessel owner en-
titled to reimbursement from the cargo owner.
Respondent alleged as a defense by avoidance against
petitioner that the Longshoremen’s & Harbor Workers’
Compensation Act, 33 U. S. C. See. 901 et seq. provided
the exclusive remedy, but any question arising thereon
became moot when petitioner failed to prove the facts of
his cause of action.
Statement of the Case
The statement made by petitioner requires correction
and supplementation.
The assertion in italics on Page 5 of the petition that
respondent alleged ‘‘that the accident was caused by its
employee’s negligence’’ (meaning the plaintiff) is erron-
eous and the inference arising therefrom that negligence
of the plaintiff, and therefore of respondent, his employer,
is conceded,—is diametrically opposed to fact. Respond-
ent’s plea to which petitioner refers was merely the asser-
tion that on the basis of petitioner’s allegations made
against respondent petitioner had certain defenses, includ-
ing that of contributory negligence, against plaintiff. (R.
24.) The plea so made pursuant to express authority of
New York Civil Practice Act Sec. 193-a (2) quoted in the
appendix to this brief, was merely to assure that if peti-
+
tioner’s charge of plaintiff's negligence, which respondent
denied, were true, it would be used as a shield against
plaintiff as well as a sword against respondent. Peti-
tioner’s allegation that respondent’s employee in charge
of the work (plaintiff) was incompetent and negligent
(R. 20) was denied (R. 22) and the issue was decided
adversely to petitioner, for, as stated at the top of Page
11 of the petition, ‘It is manifest from the amount of the
verdict, viz. $100,000. that no finding of, or allowance for,
contributory negligence was made under the comparative
negligence rule as charged by the court.’’
It should be noted as part of the statement of the case
that the jury in reporting its verdict expressly stated ‘* We
find the Steamship Company negligent.’’ (R. 261.) The
trial Court charged the jury that plaintiff asserted negli-
gence and unseaworthiness against petitioner (R. 233);
that reeovery for negligence depended upon proof of negli-
gence (R. 233-234), but that reeovery for unseaworthiness
did not depend upon negligence. (R. 234.) Under the
circumstances the jury’s report that ‘‘We find the Steam-
ship Company negligent’’ shows that petitioner's liability
was based not merely upon unseaworthiness without fault,
but upon petitioner’s negligence.
It also should be noted as part of the statement of the
ease that the Court below considered whether its decision
herein squares with the subsequent decision of this Court
in Ryan Stevedoring Co. Inc. vs. Pan-Atlantic Steamship
Corp., 350 U. S. 124, and decided that it does. Petitioner
applied for re-argument in the Court below on the basis of
this Court's decision in the Ryan Stevedoring Co. ease and
on March 7th, 1956 the application was ‘‘Denied in all re-
spects."’ (See certified copy of order attached to the ree-
ord.)
| a ay
5
Facts
Petitioner’s assertion that its negligence was merely
nonfeasance,—that its deck-cleaning operation had not
reached the area where plaintiff was injured, and that
that is why spillage in the area had not been removed, is
contrary to undisputed fact. The undisputed fact, sup-
ported by the testimony of petitioner’s first officer in
charge of the work, is that petitioner had reached the area
where plaintiff was hurt and had finished its deck-cleaning
operation there (R. 174) but neglected to remove a bushel
or two of the spillage (R. 176) which is supported by the
testimony of other witnesses (R. 130-131, 153); plaintiff
slipped and fell on the residue so negligently left by peti-
tioner. (R. 76.) Petitioner’s negligence clearly consisted
of active misfeasance.
Petitioner’s statement that the spillage which occurred
in the area where plaintiff was injured could have been
avoided if respondent had slowed down the operation is
not supported by the part of the record to which petitioner
refers and is contrary to undisputed fact. The testimony
to which petitioner refers is merely to the effect that
‘striking the hatches’’ (which may be one of the causes
of spillage) could be avoided by slower operation. (R. 169.)
The same witness, petitioner’s first officer, stated on cross-
examination that he did not want to be understood as testi-
fying that there was any striking of hatches on this ocea-
sion when plaintiff was injured (R. 171) and there is no
evidence of any striking of hatches during that time. The
obvious fact that some spillage in unloading bulk coal is
unavoidable is established by undisputed evidence. (R. 190,
123, 135.)
We could, in like manner as above, pick out and correct
each inaccuracy in petitioner's statement and supply each
—_—r
nis ~ Se. eS
tara ak wns Kite:
deficiency, but when he finished this Court still would not
have a comprehensive picture of the transaction involved.
It seems to us that this Court is entitled to such a picture
and petitioner having failed to present it, we shall do so.
Plaintiff was respondent’s employee in charge of unload-
ing respondent’s bulk coal cargo from petitioner’s ves-
sels. (R. 52.) While the accident occurred in 1948, the
history of the transaction begins in 1940 when respondent
installed at its dock special equipment thereafter used in
unloading its bulk coal cargoes from petitioner’s vessels,
(R. 140, 151.) It is ‘‘a tremendously fast piece of equip-
ment.’’ (R. 168.) The fast unloading that it accom-
plishes is, of course, desirable to petitioner in that it pro-
vides quick ‘‘turn around’’ for its vessels,—meaning that
they don’t have to lay up long while unloading. (R. 171.)
As plaintiff testified, ‘‘they (meaning the ship’s crew) are
usually in a strain to get it (meaning the ship) from the
dock.’’ (R. 127.)
Spillage of coal on deck is the unavoidable incident of
unloading bulk coal. (R. 190, 123, 135.) Normal spillage
in the course of unloading with respondent’s equipment
above mentioned is about 30 tons per boat (R. 169), spill-
age on deck amounting to about one-half ton between each
pair of hatches. (R. 176.) On the occasion when plaintiff
was hurt the spillage was substantially less, with only
about four bushels between hatches Nos. 4 and 5 where the
accident occurred. (R. 126.)
The spillage on deck constitutes no immediate hazard,
for the part of the deck upon which it falls is not then in
use; spillage oceurs only on the portside of the boat,—
none on the starboard side, which remains free of coal
(R. 68, 179); plaintiff, the only one of the unloading gang
working on deck (R. 65), works entirely on the starboard
5
Facts
Petitioner’s assertion that its negligence was merely
nonfeasance,—that its deck-cleaning operation had not
reached the area where plaintiff was injured, and that
that is why spillage in the area had not been removed, is
contrary to undisputed fact. The undisputed fact, sup-
ported by the testimony of petitioner’s first officer in
charge of the work, is that petitioner had reached the area
where plaintiff was hurt and had finished its deck-cleaning
operation there (R. 174) but neglected to remove a bushel
or two of the spillage (R. 176) which is supported by the
testimony of other witnesses (R. 130-131, 153); plaintiff
slipped and fell on the residue so negligently left by peti-
tioner. (R. 76.) Petitioner’s negligence clearly consisted
of active misfeasance.
Petitioner’s statement that the spillage which occurred
in the area where plaintiff was injured could have been
avoided if respondent had slowed down the operation is
not supported by the part of the record to which petitioner
refers and is contrary to undisputed fact. The testimony
to which petitioner refers is merely to the effect that
‘striking the hatches’’ (which may be one of the causes
of spillage) could be avoided by slower operation. (R. 169.)
The same witness, petitioner’s first officer, stated on cross-
examination that he did not want to be understood as testi-
fying that there was any striking of hatches on this occa-
sion when plaintiff was injured (R. 171) and there is no
evidence of any striking of hatches during that time. The
obvious fact that some spillage in unloading bulk coal is
unavoidable is established by undisputed evidence. (R. 190,
123, 135.)
We could, in like manner as above, pick out and correct
each inaccuracy in petitioner’s statement and supply each
6
deficiency, but when he finished this Court still would not
have a comprehensive picture of the transaction involved.
It seems to us that this Court is entitled to such a picture
and petitioner having failed to present it, we shall do so.
Plaintiff was respondent’s employee in charge of unload-
ing respondent’s bulk coal cargo from petitioner’s ves-
sels. (R. 52.) While the accident occurred in 1948, the
history of the transaction begins in 1940 when respondent
installed at its dock special equipment thereafter used in
unloading its bulk coal cargoes from petitioner’s vessels.
(R. 140, 151.) It is ‘‘a tremendously fast piece of equip-
ment.’’ (R. 168.) The fast unloading that it accom-
plishes is, of course, desirable to petitioner in that it pro-
vides quick ‘‘turn around’’ for its vessels,—meaning that
they don’t have to lay up long while unloading. (R. 171.)
As plaintiff testified, ‘‘they (meaning the ship’s crew) are
usually in a strain to get it (meaning the ship) from the
dock.’’ (R. 127.)
Spillage of coal on deck is the unavoidable incident of
unloading bulk coal. (R. 190, 123, 135.) Normal spillage
in the course of unloading with respondent’s equipment
above mentioned is about 30 tons per boat (R. 169), spill-
age on deck amounting to about one-half ton between each
pair of hatches. (R. 176.) On the occasion when plaintiff
was hurt the spillage was substantially less, with only
about four bushels between hatches Nos. 4 and 5 where the
accident occurred. (R. 126.)
The spillage on deck constitutes no immediate hazard,
for the part of the deck upon which it falls is not then in
use; spillage occurs only on the portside of the boat,—
none on the starboard side, which remains free of coal
(R. 68, 179); plaintiff, the only one of the unloading gang
working on deck (R. 65), works entirely on the starboard
7
side where there is no coal (R. 68) until the very end of
the operation. After finishing the last stages of unload-
ing, called mop-up, in No. 1 hatch, plaintiff then for the
first time is required to go upon a part of the deck where
spillage has occurred, namely, between hatches Nos. 4 and
5 (R. 68, 71, 78-79) to direct removal of the unloading
equipment. (R. 68, 71, 78-79.) The unloading operation
and established incidental practice and procedure as per-
formed by petitioner and respondent assures that the spill-
age is removed from the deck between hatches Nos. 4 and
5 before the plaintiff is required to go there (R. 73, 130-
131, 147-148) and the area is invariably free of coal when
plaintiff gets there. (R. 130-131, 147-148.)
The operation, practice and procedure that assures that
result is as follows: respondent unloads the coal and
petitioner cleans up the spillage. (R. 61-62, 135, 138, 147,
153.) Respondent’s unloading gang works over the boat,
one hatch at a time, three times, (R. 63-55.) The last going-
over, starting with hatch No. 30 and finishing at hatch No. 1,
is called mop-up. (R. 64.) While respondent’s unloading
gang proceeds from hatch to hatch in this work petitioner’s
crew follows along two to three hatches behind shoveling
up the spillage that falls on deck. (R. 135-136, 137-138, 143-
144.) Petitioner’s crew has no trouble keeping up with
the unloading gang in this operation because cleaning up
the spillage requires only five minutes around each hatch
(R. 72) while mop-up takes fifteen minutes at each hatch,
except No. 1 hatch, where more than an hour is required.
(R. 69-70, 78, 93, 136.) It is at once apparent that this
operation assures that petitioner removes the spillage from
the area between hatches Nos. 4 and 5 before plaintiff is
required to go there and that is the invariable result; the
area between hatches Nos. 4 and 5 is invariably free of
coal when plaintiff gets there. (R. 73, 130-131, 148.)
Bove dit jae Roe ee Slay AA EEE OS
8
The joint operation of petitioner and respondent above
outlined has been so performed ever since the equipment
was installed in 1940 (R. 135, 138, 143, 147-148, 153, 130-131)
during which period they handled as many as 110 boats a
year. (R. 158.) There is no evidence of any written memo-
randa between the parties until the spring of 1947 when
written confirmation was made of the contract of carriage ©
for that year. (Ex. 11, R. 200, 30-35.) The provisions
thereof here pertinent are merely that respondent would
unload the coal (R. 31) in a continuous operation (R. 31)
with freedom of liability for delay only when caused by
things beyond its control (R. 34); spillage in the course of
unloading and the cleaning up thereof were not mentioned.
That agreement was extended without material change for
the year 1948. (Ex. 11, R. 200, 36-37.) The agreement clear-
ly contemplated continuance of the same rapid operation
and incidental practice and procedure as performed by
petitioner and respondent in each of the previous years
and petitioner and respondent did in fact continue the same;
the operation above outlined and all details thereof remain-
ed precisely the same from 1940 right down to the day of
the accident. (R. 135, 138, 143, 147-148, 153, 130-131.)
The only variation which occurred at the time of plain-
tiff’s injury consisted of petitioner’s negligence in shovel-
ing up spillage between hatches Nos. 4 and 5. Whereas on
all prior occasions when plaintiff entered that area to
direct removal of the unloading equipment the area was
free of coal (R. 73, 130-131, 148) on this occasion a residue
of spillage still remained there. (R. 130-131, 147-148.) There
is no evidence or suggestion in the record that petitioner
lacked time or opportunity to do that work. On the con-
trary, petitioner’s first officer, who was in charge of the
work, stated that his crew had finished the job and on
cross-examination he admitted that they had left a residue
9
of spillage behind them in this area where plaintiff was
hurt. We quote his testimony:
“«Q. How did you do this clean-up: with a broom
or shovel?
A. Shovel.’’ (R. 176.)
“<Q, At what stage do you claim your deck-cleaning
operation was when this “weer oa was hurt?
A. We were through shoveling.
. You were through shoveling?
A. That’s right.’’ (R. 174.)
“(. How much was there this day, before you
cleaned, between 4 and 5, can you tell me?
A. Oh, I imagine a bushel basket had been left,
maybe two, by the time we finished our shoveling.”
(R. 176.)
Other witnesses confirmed the facet that petitioner left
a residue of spillage in the critical area between hatches
Nos. 4 and 5. (R. 130-131, 153.)
Upon entering this area to direct removal of the un-
loading equipment plaintiff saw the residue of coal peti-
tioner had left there,—recognized it as a source of danger
(R. 126),—tried to kick it out of his way (R. 76) and in the
operation slipped and fell into the open hatch. (R. 76.)
All of the facts hereinabove outlined are established by
undisputed evidence.
ARGUMENT
Jurisdiction Is Not Established
The judgment which petitioner seeks to review is the
judgment of the New York Supreme Court, Appellate Divi-
sion, Fourth Judicial Department. That judgment was
reviewable by the New York Court of Appeals by permis-
sion either of the Court of Appeals or of the Appellate
Division. The provisions of the New York Civil Practice
10
Act, Sections 588 and 589, prescribing when appeal to the
Court of Appeals lies as of right and when by permission,
are printed in the appendix to this brief; see particularly
Section 589, Subdivision 3 thereof. The transcript of ree-
ord filed herein fails to show that such application was
made to either Court. The record, therefore, fails to present
a matter within the jurisdiction of this Court.
The jurisdiction of this Court to review decisions of
State Courts by certiorari is limited by the provisions of
28 U.S. C. Section 1257 (pertinent provisions of which are
printed in the appendix to this brief) to judgments or
decrees rendered by the highest Court of the state in which
a decision could be had. Where the appeal to such highest
Court lies only by permission, the order of the Court deny-
ing application for such permission is sufficient for juris-
dictional purposes. It is jurisdictionally necessary that
the transeript of record show decision by the highest Court
of the state either on the merits or by rejection of applica-
tion for leave to appeal. U1. J. Gorman vs, Washington
Unirersity, 316 U.S. 98.
The situation presented in the Gormun case was similar
to that presented here in that there, as here, the judgment
sought to be reviewed was not the judgment of the highest
state court; there, as here, appeal to the highest state court
lay only by permission; there, as here, the record failed to
show that application for such permission had been made
and rejected. This Court dismissed the writ of certiorari
in the Gorman ease holding:
‘*As the record fails to disclose that the judgment,
review of which is now sought, is that of the highest
court of the state in which a decision could be had, we
are without jurisdiction and the writ must be dismiss-
ed.’’ (316 U.S. 98, 101.)
In like manner and for the same reason, the application
here for writ of certiorari should be denied and dismissed.
11
Petitioner Failed to Prove the Facts of its Case; it
Failed to Prove that Respondent Breached any Duty; it
Failed to Prove that Plaintiff’s Injury and Petitioner’s
Loss were Caused by any Act of Respondent; the Proof
Affirmatively Showed that such Injury and Loss were
Caused by Petitioner’s Misfeasance in the Performance
of its Deck-Cleaning Duty.
This case does not involve a general stevedoring situa-
tion. It is a special circumstance case involving a special
arrangement between vessel owner and cargo owner where-
by they shared the work incident to unloading in such man-
ner as to accomplish expeditious discharge of cargo and
quick ‘‘turn around’’ for the vessel. The arrangement was
that respondent would unload the coal and petitioner would
follow along immediately behind the unloading gang and
clean up the coal that spilled on deck. (R. 61-62, 135-136,
137-138, 143-144, 147, 153.) The parties so operated for
many years down to and including the time in question.
(R. 135, 138, 143, 147-148, 153, 130-131.) Respondent did
its usual work in the usual manner. Petitioner also did its
usual work (R. 174) but on this occasion did it negligently
and left a residue of spillage in a critical area and plaintiff
fell upon it. (R. 176, 130-131, 147-148, 76.) These are the
ultimate facts of the case and they are undisputed.
It is undisputed that some spillage in unloading bulk
coal is unavoidable (R. 190, 123, 135) and that the spillage
here involved was less than usual—four bushels compared
with one-half ton. (R. 126, 176, 169.) Petitioner presented no
direct evidence of how the spillage here involved occurred.
It offered only the testimony of what three witnesses
(Wolters, Reid and Smith) observed at several other un-
specified and unidentified occasions. The testimony of pe-
tioner’s witnesses appended to its petition is part of the
AVE BTR ORR” DOs tie Dal Acero
Basa wera wus
12
testimony of these three witnesses. They testified that at
these other unidentified occasions they observed that the
speed of respondent’s equipment caused spillage and that
sometimes the unloading equipment struck the sides of the
hatches causing additional spillage. There was no evidence
of any such striking of hatches on this occasion; Wolters,
the only one of the three witnesses who was present at the
time of the unloading here involved, stated on cross-exam-
ination that he did not want to be understood as testifying
that there was any striking of hatches at the time here in-
volved. (R. 171.) The most that could be claimed for peti-
tioner’s evidence is that respondent’s ‘‘tremendously fast
piece of equipment’’ has been observed at several unspeci-
fied and unidentified occasions to have caused spillage some
of which less speed might have avoided. This evidence had
no pertinent probative force particularly in the face of the
undisputed facts that some spillage is unavoidable and that
the spillage on this occasion was substantially less than
ordinary.
In any event, so long as the spillage on this occasion was
no greater than the ordinary amount—and there is no evi-
dence that it was—it entailed no breach of duty. Such spil-
lage was within the contemplation of the parties as incident
to the work performed.
Petitioner and respondent co-operated in unloading re-
spondent’s bulk coal cargoes for many years, with respond-
ent unloading the coal and petitioner cleaning up the coal
that spilled on deck. (R. 61-62, 135-136, 137-138, 143-144,
147, 153.) From this experience the parties knew how much
spillage to expect (30 tons per boat with one-half ton on
deck between each pair of hatches, R. 176); where the
spillage would fall on deck (on the port side, none on the
starboard side, R. 68, 179) ; that the deck area upon which
spillage oceurred was not then in use and would not be
ae
13
used until when at the very end of the operation it became
necessary for plaintiff to enter the area between hatches
4 and 5 where spillage had occurred in order to direct re-
» moval of its equipment (R. 65, 68, 71, 78-79); that in the
meantime the ship’s crew had ample time to clean up the
_ spillage (the deck-cleaning job which followed immediate-
_ ly behind the respondent’s unloading gang, R. 135-136,
137-138, 143-144, took only five minutes at each hatch, R.
72, while the unloading gang had to spend fifteen minutes
at each hatch, R. 78, 69-70, 136, and an hour or more at the
last hatch to be unloaded, namely, No. 1, R. 78, 69-70, 136) ;
that this operation would assure that the area between
hatches 4 and 5 would be free of spilled coal when it beeame
necessary for plaintiff to enter upon it and it invariably
was. (R. 73, 130-131, 148.) Petitioner and respondent so
operated for eight years (R. 135, 138, 143, 147-145, 153,
130-131) with as many as 110 unloadings a year. (R, 158.)
So performed, the operation was not hazardous but remark-
ably safe; there is no suggestion of the occurrence of any
accident or injury during the entire eight year period.
The written confirmation of the contract of carriage for
1947 and renewed for 1948 without material change, pro-
vided merely that respondent would unload its bulk coal,
and in order to assure quick turn around for petitioner’s
vessels it was further provided that the operation would
be continuous and that respondent would be relieved from
liability for delay only when caused by things beyond its
control. (Ex. 11, R. 200, 30-37.) It clearly contemplated
continuance of the same joint operation as performed by
the parties during each of the six preceding years, and
the parties so continued; they performed the operation
hereinabove outlined without change from 1940 right down
to the day of the accident. (R. 135, 138, 143, 147-148, 153,
130-131.) It was respondent's duty to unload the coal
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14
with substantially the same speed which petitioner had
enjoyed during the preceding years; it was respondent’s
duty to clean up the spillage which their experience showed
was the ordinary incident of the unloading operation and to
so remove the spillage from between hatches 4 and 5 before
it was necessary for plaintiff to enter that area at the end
of the unloading operation. Ordinary spillage consti-
tuted no breach of duty; it was within the contemplation of
the parties as an incident of the work to be performed.
Respondent properly performed; the spillage was no
greater than ordinary but actually less—four bushels in
the critical area as compared with the ordinary one-half
ton. (R. 126, 176, 169.) Petitioner’s performance was
negligent; it left a residue of spillage in the critical area
where it was known plaintiff presently would have to work.
(R. 176, 130-131, 153.) Petitioner’s negligence consisted
not in failing to discover the spillage or in being slow
in reaching this particular area, as petitioner suggests;
petitioner knew that the spillage was there and in fact
cleaned the area (R. 174, 176) but did the work so negli-
gently that a residue of a bushel or two remained (R. 176,
130-131, 147-148) and caused the accident. Petitioner’s
negligence was aciive misfeasance; it left a residue of
coal in an area adjacent to an open hatch where it was
known that plaintiff would presently have to work and
plaintiff’s injury by falling upon it was the natural and
foreseeable result of petitioner’s negligence.
Petitioner's claim that in this situation plaintiff—and
through him, respondent—was negligent in not ceasing
the work and insisting upon petitioner coming back to this
area and doing a proper job, was not established to the
satisfaction of the trier of the facts. There is no assurance
that it would have done any good for plaintiff to complain
to petitioner for petitioner’s first officer in charge of the
dome wae
ea
15
work already knew that his crew had done a poor job
and had left some spillage in the area (R. 176) and he had
accepted it apparently because he couldn’t control them—
‘I couldn’t force them to clean it’’ he said. (R. 176.) In
any event, a prime and factual difficulty with petitioner’s
theory predicated upon plaintiff’s negligence, is that plain-
tiff’s negligence was not established; as stated by peti-
tioner at the top of Page 11 of its brief, it is manifest that
the jury concluded that plaintiff was not negligent. The
Courts below which denied petitioner’s application to set
aside that verdict and dismissed petitioner's complaint
against respondent, obviously agreed. When plaintiff
started his brief work in this area he was unexpectedly
confronted with a situation which he had never encountered
before; on all previous occasions this area had been cleaned
of spillage when he came to it. (R. 73, 130-131, 148),—now
he unexpectedly found coal there (R. 130-131, 147-148);
not much, perhaps only a bushel or two (R. 176), but some
coal was there and he realized that it created a dangerous
situation for him. (R. 126.) Upon being confronted with
this unexpected emergency he figured that he could shove
the dangerous coal away with his foot, and that is what
he did. (R. 123, 76.) While so engaged, he slipped and fell.
(R. 123.) How critically to judge the snap judgment and
conduct of a person in endeavoring to extricate himself
from an emergency into which the negligence of another
has injected him is peeuliarly within the province of the
trier of the facts. The Courts below concluded that plain-
tiff and respondent whom he represented were not negli-
gent.
It accordingly appears that petitioner failed to prove
the facts of his alleged cause of action and that in econ-
sequence no substantial question of law arises. Petitioner
failed to prove that plaintiff's injury and petitioner’s loss
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Bain: SP aes ee Sted SP ate REN al ON etna Sealand ORRIN AL Sipe Sect NAS Micha De ESD NN
16
were caused by any breach of duty on the part of respond-
ent; it appeared on the contrary that the cause of plain-
tiff’s injury and of petitioner’s loss was petitioner’s active
misfeasance. Under the circumstances indemnity is not
indicated and was properly denied in the Courts below.
Conclusion
The transcript of record fails to show that the judg-
ment sought to be reviewed is the judgment of the highest
Court of the state in which a decision could be had and,
accordingly, fails to present a matter within the jurisdic-
tion of this Court.
On the merits, it appears that this is not a case of gen-
eral application or interest. It is not a general stevedoring
situation. It is a special circumstance case arising from a
special arrangement and co-operation between carrier and
eargo owner for the purpose of effecting expeditious un-
loading. The decision of the Courts below is based upon
petitioner’s failure to prove the facts of its case rather
than upon decision of any federal question of substance
and is not shown to be at variance with any decisions of
this Court.
The application for writ of certiorari should be denied.
Respectfully submitted,
HAROLD J. ADAMS,
Counsel for Third-Party Defendant-Respondent,
705 Walbridge Building,
Buffalo 2, New York.
Argtuer E. Orrex,
Of Counsel,
1106 Prudential Building,
Buffalo 2, New York.
Peet cae
es
15
work already knew that his crew had done a poor job
and had left some spillage in the area (R. 176) and he had
accepted it apparently because he couldn’t control them—
‘IT couldn’t force them to clean it’’ he said. (R. 176.) In
any event, a prime and factual difficulty with petitioner’s
theory predicated upon plaintiff’s negligence, is that plain-
tiff’s negligence was not established; as stated by peti-
tioner at the top of Page 11 of its brief, it is manifest that
the jury concluded that plaintiff was not negligent. The
Courts below which denied petitioner's application to set
aside that verdict and dismissed petitioner’s complaint
against respondent, obviously agreed. When plaintiff
started his brief work in this area he was unexpectedly
confronted with a situation which he had never encountered
before ; on all previous oceasions this area had been cleaned
of spillage when he came to it. (R. 73, 130-131, 148),—now
he unexpectedly found coal there (R. 130-131, 147-148) ;
not much, perhaps only a bushel or two (R. 176), but some
coal was there and he realized that it created a dangerous
situation for him. (R. 126.) Upon being confronted with
this unexpected emergency he figured that he could shove
the dangerous coal away with his foot, and that is what
he did. (R. 123, 76.) While so engaged, he slipped and fell.
(R. 123.) How critically to judge the snap judgment and
conduct of a person in endeavoring to extricate himself
from an emergency into which the negligence of another
has injected him is peculiarly within the province of the
trier of the facts. The Courts below concluded that plain-
tiff and respondent whom he represented were not negli-
gent.
It accordingly appears that petitioner failed to prove
the facts of his alleged eause of action and that in con-
sequence no substantial question of law arises. Petitioner
failed to prove that plaintiff's injury and petitioner’s loss
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Biatraieinun =
|
were caused by any breach of duty on the part of respond-
ent; it appeared on the contrary that the cause of plain-
tiff’s injury and of petitioner’s loss was petitioner’s active
misfeasance. Under the circumstances indemnity is not
indicated and was properly denied in the Courts below.
Conclusion
The transcript of record fails to show that the judg-
ment sought to be reviewed is the judgment of the highest
Court of the state in which a decision could be had and,
accordingly, fails to present a matter within the jurisdic-
tion of this Court.
On the merits, it appears that this is not a case of gen-
eral application or interest. It is not a general stevedoring
situation. It is a special circumstance case arising from a
special arrangement and co-operation between carrier and
eargo owner for the purpose of effecting expeditious un-
loading. The decision of the Courts below is based upon
petitioner’s failure to prove the facts of its case rather
than upon decision of any federal question of substance
and is not shown to be at variance with any decisions of
this Court.
The application for writ of certiorari should be denied.
Respectfully submitted,
HAROLD J. ADAMS,
Counsel for Third-Party Defendant-Respondent,
705 Walbridge Building,
Buffalo 2, New York.
Artuur E, Ortex,
Of Counsel,
1106 Prudential Building,
Buffalo 2, New York.
Appendix
PROVISIONS OF NEW YORK CIVIL PRACTICE ACT.
See. 588. Appeal as of right.
Appeal to the court of appeals as of right lies only
1. from a judginent or order of the appellate division,
provided that the judgment finally determine an ac-
tion, or the order finally determine a special pro-
ceeding, and provided further that
(a) there be directly involved the construction of
the constitution of the state or of the United States;
or
(b) the action or proceeding was originally com-
meneed in the supreme court, a county court, a sur-
rogate’s court, the court of claims, or an administra-
tive agency, and
(i) one or more justices of the appellate division
dissent from its decision: or
(ii) the appellate division direct a reversal or modi-
fication of the judgment or order appealed from;
to
from a final judgment or order of the court of original
instance, entered following a determination by the
appellate division specified in section five hundred and
ninety of this act, subject to the same limitations as
prescribed in subdivision one hereof; and from a judg-
ment or order of the appellate division affirming such
a judgment or order:
3. from an order of the appellate division granting a
new trial or hearing, or affirming an order granting
a new trial or hearing, in an action or special pro-
ceeding originally commenced in the supreme court, a
county court, a surrogates court, the court of claims,
SS et els Key Site
aan ee ee
oth atte er Wee OR AIel Mr
Baireaantlk ee ee Ane an
18
or an administrative agency, where the appellant stipu-
lates that, upon affirmance, judgment or order absolute
shall be rendered against him; and upon such appeal
the court of appeals shall affirm and render judgment
or order absolute against the appellant unless it de-
termines that the appellate division erred as a matter
of law in granting the new trial or hearing;
from a judgment of a court of record of original juris-
diction which finally determines an action or an order
of such court which finally determines a special pro-
ceeding, where the only question involved on the appeal
is the validity of a statutory provision of the state or
of the United States under the constitution of the state
or of the United States; and on any such appeal only
the constitutional question shall be considered and de-
termined by the court.
See. 589. Appeal by permission.
Appeal to the court of appeals by permission lies only
1.
by permission of the appellate division, and not other-
wise,
(a) from a judgment or order of the appellate di-
vision which does not finally determine the action or
special proceeding in which it is entered, and
(b) from a judgment or order of the appellate di-
vision in an action or a special proceeding which was
originally commenced in a court other than the supreme
court, a county court, a surrogate’s court, or the court
of claims, unless the construction of the constitution
of the state or of the United States is directly in-
volved; and
by permission of the court of appeals upon the ground
that, in its opinion, a question of law is involved which
SST Sa
eee
19
ought to be reviewed by it, and without regard to the
availability of appeal by stipulation for final order
absolute, from an order of the appellate division
in a proceeding instituted by or against one or more
public officers or a board, commission or other body
of public officers or a court or tribunal, other than an
order which finally determines such proceeding; and
either
(a) by permission of the appellate division granted
before application to the court of appeals for per-
mission to appeal, and in case of refusal of such per-
mission, by permission of the court of appeals, or
(b) by permission of the court of appeals upon ap-
plication made directly to that court, from a judgment
or order of the appellate division, or of the court of
original instance, which is not appealable as of right
only beeause it does not comply with provision (a) or
(b) of subdivision one of section five hundred and
eighty-eight of this act.
(a) The appeals authorized by this section shall be
allowed upon questions of law when required in the
interest of substantial justice: and the appellate di-
vision, when it allows such an appeal, shall certify
that questions of law have arisen which in its opinion
ought to be reviewed by the court of appeals,
(b) In its order allowing an appeal from a judg-
ment or order which does not finally determine an ae-
tion or special proceeding, the appellate division shall
certify the questions of law decisive of the correctness
of its determination or of any separable portion there-
of; and the determination shall then be reviewable in
the court of appeals in the manner prescribed in see-
tions six hundred and three and six hundred and six
20
of this act. The court of appeals shall certify to the
appellate division its answers to the questions certified
and shall direct the entry of the appropriate order or
judgment.
EXCERPT FROM SECTION 193-a(2):
In his answer the third-party defendant may assert
against the plaintiff any defenses which the third-party
plaintiff has to the plaintiff’s claim.
28 UNITED STATES CODE
SECTION 1257.
§ 1257. State Courts; Appeal; Certiorari.
Final judgments or decrees rendered by the highest
court of a State in which a decision could be had, may be
reviewed by the Supreme Court as follows:
1
§
4
j
4
4
n
4
;
;
cium —
rar on
i
7
HAROLD 8. WILLEY ¢
IN THE a. lini f
Supreme Court of the United States
OCTOBER TERM, 1955
No. 753
Brvce Cox,
Plaintiff,
—against—
DvcLctTH Steamsuip Company,
Defendant and Third-Party
Plaintiff-Petitioner,
—against—
ALLIED CuemicaL & Dye CorporaTion-SEMET
Soivay Division, )
Third-Party Defendant- F
Respondent.
es 5
PETITIONER’S REPLY BRIEF f
Joux M. AHERNE ;
Counsel for Petitioner
99 John Street ;
New York 38, N. Y. '
f
BicHaM, Enoiar, Jones & Hovstox
Of Counsel
99 John Street
New York 38, N. Y.
eevee
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