Brief of Bethlehem Steel Co in Opposition to Petition for Writ of Certiorari — Raidy v. United States (No. 931)

LIBRARY

SUPREME COURT. U. S.

a

Office - Supreme Court, U.S.

FILAD

MAY 2 2 1320

JOHN T. FEY, Clerk

In THE

Supreme Court of the United States

Ocvoser TERM, 1957

No. 931

JAMES S. RAIDY,

Petitioner,

v.

UNITED STATES OF AMERICA

AND

SBETHLEHEM STEEL COMPANY,

Respondents.

BRIEF OF BETHLEHEM STEEL COMPANY

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Davin R. Owen,

10 Light Street (25th Floor),

Baltimore 2, Maryland,

Attorney for Respondent,

Bethlehein Steel Company.

The Daily Record Co. Baltimore 3, Md.

\ INDEX

TABLE OF CONTENTS

PAGE

POSITION OF THIS RESPONDENT 1

THE OPINIONS BELOW 2

QUESTIONS PRESENTED ae 2

STATEMENT OF THE CASE 2

APGUMENT:

I. This Court Should Not Review the Findings

of Fact of the District Court Which Were

Unanimously Concurred in by the Court of

Appeals Saree 8

Ii. This Case Presents No Conflict With the De-

cisions of This Court 10

III. This Case Presents No Conflict Between the

Circuits as to Petitioner's Right to Recover for

Unseaworthiness 13

IV. This Case Presents No Conflict Between the

Circuits as to the Issue of Negligence 15

CONCLUSION , 18

TABLE OF CITATIONS

Cases

Alaska S. 5s. Co. v. Petterson, 347 U. S. 396

/ 1954) 10, 12, 16, 17

Berge v. National Bulk Carriers Corporation, 251 F.

(2d) 717 (C. A. 2, 1958) 13

Berryhill v. Pacific Far East Line, 238 F. (2d) 385

C. A. 9, 1956), cert. den. 354 U. S. 938 (1957) 10, 12,

13, 14

ii

PAGE

Brabazon v. Belships Co., 202 F. (2d) 904 <‘C. A. 3,

1953 ) 16

Christiansen v. United States, 192 F. (2d) 199 (C. A.

1, 1951? ; 15

Crawford v. Pope & Talbot, Inc., 206 F. (2d) 784

(C. A. 3, 1953) | 15

Feinman v. A. H. Bull S. S. Co., 216 F. (2d) 393 (C. A.

3, 1954) , 17, 18

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

336 U.S. 271 (1949) 10

Halecki v. United New York and New Jersey Sandy

Hook Pilots Association, 251 F. (2d) 708 (C. A.

2, 1958) | 13, 17

Imperial Qil Ltd. v. Drlik, 234 F. (2d) 4 (C. A. 6,

1956 ) ) 15

McMahon v. Panamolga, 127 F. Supp. 659 (D. Md.

1955) 16

Owens v. United States, 1958 A. M. C. 216 'S. D. Fla.

1957) 14

Pioneer Steamship Co. v. Hill, 227 F. (2d) 262 (C. A.

6, 1955) 15, 16

Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 (1953) 10, 11, 12,

14, 18

Read v. United States, 201 F. (2d) 758 (C. A. 3, 1953) 14

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) 10, 11, 12,

13, 14, 15, 18

West v. United States, 143 F. Supp. 473, 246 F. (2d)

443 (E. D. Pa. 1956! 14, 16

Miscellaneous

Admiralty Rule 56 | 1

ali |

In THE

Supreme Court of the United States

OcToBER TERM, 1957

No. 931

JAMES S. RAIDY,

Petitioner,

Vv.

UNITED STATES OF AMERICA

AND

BETHLEHEM STEEL COMPANY,

Respondents.

BRIEF OF BETHLEHEM STEEL COMPANY

IN OPPOSiTION TO PETITION FOR

WRIT OF CERTIORARI

POSITION OF THIS RESPONDENT

Petitioner sued the United States of America in the

District Court for the District of Maryland, in admiraity.

The United States impleaded Bethlehem Steel Company

under Admiralty Rule 56, which provides with respect to

a Respondent-Impleaded: “* * * such suit shall proceed

as if such vessel or person had been originally proceeded

against * * *. By virtue of this provision Bethlehem Steel

Company is properly a Respondent in this Court.

Le)

THE OPINIONS BELOW

The opinion of the District Court is reported at 153 F.

Supp. 777. The opinion of the Court of Appeals is reported

at 252 F. (2d) 117. Both Courts resolved all factual and

legal issues in favor of the United States.

QUESTIONS PRESENTED

I. Was the United States negligent? If so,

A. Was its negligence the proximate cause of the

accident?

II. Was the vessel unseaworthy? If so,

A. Was its unseaworthiness the proximate cause of

the accident? If so,

B. Is Petitioner, a shipyard worker engaged in major

structural repairs, entitled to recover for such

unseaworthiness?

STATEMENT OF THE CASE

Petitioner's “Staternent™ is incomplete and inaccurate

in important respects. In particular he states repeatediy

that he fell through “a hole in the walkway due to a missing

plate’. He fails to explain that the shipyard was required

by its contract with the United States to remove the plate,

and that it had been removed to facilitate the installation

of the “mixing well” which Petitioner himself was helping

to install.

Petitioner also seeks to give the impression that there is

no question as to te inadequacy of the lighti.g at the

piace of the accident. However, this was, and is, a bitterly

contested factual issue.

‘

3

For these reasons, and for the reason that the funda-

mental quest.ons presented in this case are factual rather

than legal, this Respondent feels it necessary to develop

the facts in detail as established by the testimony.

Vessel Was Undergoing Major Structural

Repairs and Conversion.

The “Goethals” is a large vessel resembling an ocean-

going tanker. At the time of the accident it was in Beth-

lehem’s yard (specifically, in drydock) undergoing a major

overhaul and conversion which cost about $600,000 (R.

3a, 41). The vessel was in the yard from September 14,

154, to December 9, 1954, and from October 25 to Novem-

ber 7 was in the largest drydock (R. la, 20). it was testified

without contradiction by the chief government inspector

that this type of werk is not normally performed by the

crew, since it is beyond their physical capability ‘R. 3a,

41). In fact only five shipyards on the East Coast can

handle such a job (R. 3a, 37).

Both the overhaul and the conversion required dry-

docking ‘R. 3a, 42:. The former included removal of

propellers and shafts and opening of all sea valves, shut-

ting down the power plant, rebuilding tie boilers, open-

ing up the turbines, and overhauling ali dredge pump

machinery and auxiliaries (R. 3a, 31-2).

The conversion involved a complete change of function

of the dredge from one which stores its sludge until it

can later be dumped in a spoil area, to one which mixes

the mud with water and immediately regurgitates it, This

required the installation of a number of “mixing wells”.

These were steel boxes 8 x 8’ x 25’ fabricated ashore by

Bethichem and set through the main deck into the “hop-

pers” (comparable to the holds of an ordinary vessel).

4

This required the cutting cf the main strength members

of the vessel (including the center line girder for a dis-

tance of 180 feet) and the cutting of two 5’ x 5’ holes in

the bottom of the ship for the installation of iuew sea

valves (R. 3a, 32).

Petitioner's Work Cannot be Performed by Seamen

Petitioner was a “shipfitter’, a specialist in ship con-

struction found only in a shipyard (R. 3a, 21). At the time

of his fall one of the wells had been set in place, and he

was helping another shipfitter to straighten up the top

where it protruded above the deck (R. la, 11). By the

uncontradicted testimony this particular job is performed

exclusively by shipyard personnel ‘(R. 3a, 41), and the

members oj the crew are not trained to do it (R. 2a, 44).

Plate had been Removed as Part of the Job

Petitioner fell through a walkway at a point where one

of the 3’ x 2’ steel flocr-plates had been removed. Beth-

lehem was actually required by its contract to remove and

replace all of these plates, which had become worn after

sixteen years’ use (R. 3a, 35-6; 42; 43).

Furthermore the plates wer intended to be removable

so as to give access to the piping under the walkway, and

they are frequently so removed (R. la, 7; 18). At the time

of the accident about six of the plates in the 180 foot

length of this waikway had been unbolted and were lean-

ing against the railings at approximately 30 foot intervals

(R. 3a, 22; 40; 491. This was necessary because some large

pipes under the walkway had to be cut out in order to

install the wells (R. la, 17; E. 36-7). It is thus apparent

that the removal of the plate in question was an integral

4)

part of the very job which the United States had employed

Bethlehem to perform. In fact during a large part of the

contract period there were no plates at all on the catwalk

(R. 3a, 39).

Petitioner Should Have Known That the Plate

Had Been Removed

Petitioner was definitely not injured as the result cf

an unknown or unusual danger. Quite the contrary. Tle

hazards which he faced were those which all shipyard

workers face every day by the very nature of their work.

He had worked on the ship before Octuber 27, 1954 (R

la, 24), and knew the condition it was in. When he re-

ported for work at 4 P. M. on that date, he was on the main

deck (R. la, 59; R. 3a, 50), where the walkways were lc-

cated. Fifteen minutes before the accident he came back

on the deck from a hopper and worked on the catwalk

until he fell (R. la, 18). He knew that the plates were

removable and were frequently removed (R. la, 37).

Petitioner's witness Henneman — the man with whom

he was handling the chalk line — admitted that he knew

at the time that six or seven plates had actually been re-

moved, including the very plate in question (R. 3a, 22-3).

This should have been obvious to anyone, he said (R. 3a.

23), but it was also “quite possible” that he said some-

thing to Petitioner about it (R. 3a, 25). Petitioner's leader,

Myers, testified that nen the men reported to him on deck

at the beginning of the shift, he saw that the plates were

turned up (R. 3a, 49-50). The chief government inspector,

Burnett, also knew that the plates had been removed ( R.

3a, 39-40). In view of this evidence Petitioner's testimony

that he did not know the plates were off is incredible.

6

Lighting Conditions Were Entirely Adequate

Petitioner’s description of the light conditions at the

place of the accident is greatly exaggerated. The Petition

states (p. 3) that the District Court found as a fact that the

lighting was “very poor”. The opinion does not say so

(R. la, 64). The only basis for this statement is Judge

Chesnut’s reference to the testimony of one witness to

this effect. However, in the next two sentences the Court

shows that he did not believe Petitioner’s testimony that

the lighting was so inadequate that he had to use a flash-

light.

Petitioner's fellow-worker and chief fact witness, Henne- ©

man, testified that at the time of the accident it was “dusk”

(R. la, 9-10) and he had not required any lights (R. 3a,

18). Moreover, he said that he or any other workman

could have asked the shipyard electrician for additiona!

lights at any time and gotten them “quickly at the re-

quired spots” ‘R. 3a, 18: 51). It is uncontradicted that

Petitioner himself could have ordered lights if he thought

the illumination was insufficient (R. 3a, 20).

There are numerous glaring inconsistencies in Peti-

tioner’s testimony about the lights. He said he asked his

leader, Myers for more light (R. la, 25: 34) ‘although he

could have ordered it direct from the electricians if he had

really needed it'. Myers denied having any such conver-

sation (R. 3a, 48) and specifically said that no one had

complained about the lights ‘R. 3a, 51). In fact Petitioner's

own witness, Henneman, also admitted that Petitioner did

1ot mention insufficiency of lights (R. 3a, 18).

Petitioner said that when he complained to his leader.

he was told to use his flashlight because it was a hurry-up

job 'R. la, 34). Myers denied telling Petitioner any such |

thing and said he never knew that the man had a flash-

7

light (R. 3a, 48; 51). This is corroborated by the testi-

mony of Petitioner’s witness Simms who was working in

the hopper where Petitioner fell. He said that the flash-

light fell out of Petitioner's pocket as he lay there (R. la,

22). From this it is perfectly obvious that he could not have

been using it before he fell, which in turn strongly nega-

tives his claim of insufficient light. The District Court

naturally noted this (R. 1a, 64).

Petitioner's description of the extension light in use at

the scene of the accident is particularly at odds with the

facts. At first he testified that there were no lights on the

ship at all. The nearest lights, he said, were on the dry-

dock wall 30-40 feet away (R. la, 25). Later he reversed

himself completely and described a 300-500 watt light

only 15 feet away on top of the mixing well (R. la, 60).

A 300-500 watt bulb gives off a great deal of light at 15

feet. Henneman, the co-worker, said there was sufficient

light to use the chalk line, which is a piece of string one-

sixteenth of an inch in diameter (R. 3a, 21-2). Myers testi-

fied that he was only 5-10 feet from Petitioner when he

tell (R. 3a, 48), and that he was having no difficulty in

reading graduations of one-sixteenth inch on a carpenter's

rule he was using (R. 3a, 48-9). Under these conditions it

is inconceivable that Petitioner had insufficient light to

see a 3’ x 2’ hole in the catwalk.

The Lighting Condition Was Not the Proximate

Cause of the Accident.

Any causal connection between the light conditions and

the accident was negatived by the fact that when he fell

into the hold he was walking backward and was looking

upward and not down at the walkway where he was

stepping (R. la, 26-7, 36). No such causal connection was

found by the trial court.

In this connection it is significant that a large staging

five feet high, and taking up almost the entire width of

the walkway, had been placed by the shipyard adjacent to

the hole on the side nearest to Petitioner (R. la, 12-3, 57;

R. 3a, 50). He actually had to “climb” around it (R. la,

35-6; R. 3a, 22-3). Whatever its purpose, the staging could

scarcely have been improved upon as a barricade to pre-

vent people from falling into the hole. However, Petitioner,

climbing around it backwards and looking up at his string

rather than down at the catwalk behind the staging, man-

aged to step into the hole. His fellow-worker, Henneman,

on the other hand, had had no difficulty in seeing the miss-

ing plate on the other side of the staging (R. 3a, 22-3).

Petitioner made much of some testimony that after the

accident a 'ight was placed directly over the hole. This

testimony was objected to and clearly should have been

excluded ‘(R. 3a, 19). Later, objections were sustained to

the same questions, and the District Court conceded that

they violated “the ordinary rules of evidence” (R. la, 56;

R. 3a, 26-7).

Bethlehem paid the Petitioner compensation for tem-

porary total disability under the Longshoremen’s Act until

his return to work ‘Tr. 309). It also paid his medical

expenses. He is, of course, still eligible for permanent dis-

ability benefits (if he suffered a permanent injury).

ARGUMENT

I.

This Court Should Not Review the Findings of Fact of

the District Court Which Were Unanimously

Concurred in by the Court of Appeals.

The Petition siates ‘p. 13) that: “This is not a case

where the important facts were disputed * * *.” On the

9

contrary, many, if not most, of the important facts were

disputed. For example, there was a hopel2ss conflict in

the testimony regarding the adequacy of the lighting con-

ditions. Petitioner’s references (pp. 2, 13) te “uncontra-

dicted” evidence of ‘unsafe conditions” are simply fanciful.

Petitioner states (p. 13) that he is “not asking the Court

to re-examine fact findings of the lower Courts”. Despite

his protestations, however, that is exactly what he wants

this Court to do. Petitioner would like this Court *o hold

that a shipyard worker can recover for unseaworthiness,

even though he is not performing a seaman’s work. How-

ever, before reaching that question of law the Court would

have to find as a matter of fact (1) that the owner was

negligent, or (2) that the vessel was unseaworthy, and (3)

that the negligence and/or unseaworthiness was the proxi-

mate cause of the accident.

The District Court (R. la, 62) prefaced his recital of the

facts with the following statement: “From the evidence

in the case I find the following relevant and important

facts’. After reciting the facts the District Court stated

his conclusion as follows (R. la, 64):

“On these facts and in the circumstances stated I

find and conclude that (a) there was no negligence on

the part of the shipowner causing or contributing to

the libelant’s injuries, and (b) the ship at the time

was not ‘unseaworthy’ ”.

The issues were thus basically factual.

Having found that the United States was not negligent

and that the ship was not unseaworthy, the Court might

have dismissed the libel without more discussion, but he

chose to proceed with a further discussion as to whether

the Libelant was one of that class of workers who is

entitled to recover for unseaworthiness. He concluded that

the Libelant had no such right. However, this discussion

10

and conclusion was not necessary to the Court’s decision,

since his findings on negligence and unseaworthiness com-

pletely disposed of the libel.

The Court of Appeals unanimously concurred in Judge

Chesnut’s findings and conclusions. This Court has

frequently stated its unwillingness to reconsider factual

issued concurred in by the District Court and the Court

of Appeals. For example, the following statement was made

in Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 275 (1949):

“A court of law, such as this Court is, rather than a

court for correction of errors in fact finding, cannot

undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and

exceptional showing of error.”

We submit tat this rule should be applied here.

II.

This Case Presents No Conflict With the

Decisions of This Court.

Petitioner attempts to develop some inconsistency be-

tween this case and Seas Shipping Co. v. Sieracki, 328 U. S.

85 (1946), Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953)

and Alaska S. S. Co. v. Petterson, 347 U. S. 396 (1954).

Exactly the same contention was made in the petition for

writ of certiorari in the very similar case of Berryhill v.

Pacific Far East Line 238 F. (2d) 38 (C. A. 9, 1956),

but that petition was denied. 354 U.S. 938 (1957). If there

was no conflict between Berryhill and the Sieracki, Hawn

and Petterson decisions, then the instant case represents no

conflict either.

/

As previously pointed out, the courts below had to de

cide (1) whether the United States was negligent, and (2)

11

whether the ship was unseaworthy. These issues having

been /resolved against Raidy, there was no necessity for

considering whether he was a type of worker who could

recover for unseaworthiness. It is therefore most sur-

prising to find that the Petition consists chiefly of an argu-

ment that this Court should review what is, strictly speak-

ing, only a dictum of the court below dealing with the

status of the Libellant.

Actually the comments of the courts below on Raidy’s

status as a Libellant are in complete accord with the

ratio decidendi of the three cases in this Court referred.to

above. From numerous references in the opinion of Mr. Jus-

tice Rutledge it is entirely clear that the Sieracki decision

was based upon the proposition that, for some purposes, a

longshoreman is “a seaman because he is doing a seaman’s

work” (p. 99). At page 96 it is stated that: “Historically

the work of loading and unloading is the work of the

ship's service, performed until recent times by members

of the crew”. Similar statements from previous decisions

of the Court are quoted at pages 98 and 99. In a vigorous

dissent Chief Justice Stone pointed out the very real

differences between a longshoreman’s problems and those

of a seaman.

In the Hawn case Mr. Justice Jackson, writing the dis-

senting opinion for himself and two other Justices, de-

veloped in detail the historical and legal differences be-

tween the employment of a seaman and that of a long-

shoreman. Although the majority adhered to the Sieracki

decision, the opinion of Mr. Justice Black makes it clear

that the rationale of the decision was Hawn’s connection

with the loading of the ship. At page 412-3 he said:

“Sieracki’s legal protection was not based on the

name ‘stevedore’ but on the type of work he did and

i1s relationship to the ship and to the historic doctrine of

12

seaworthiness. The ship on ‘whieh Hawn was hurt

was being loaded when the grain loading equipment

developed a slight defect. Hawn was put to work on

it so that the loading could go on at onve. There he was

hurt.”

Adhering carefully to the test established in Sieracki

and reaffirmed in Hawn, Judge Chesnut made the following

important finding from the evidence (R. la, 68):

“In the instant case the libelant shipyard worker

was performing duties not within the competence or

the traditional or customary activities of the crew.

His status therefore was very different from that of a

seaman. The ship was in drydock for structural

changes which could not have been performed by the

crew.”

This statement was specifically approved and adopted by

the Court of Appeals (App. A, 16!. This conclusion is in

strict accordance with the rationale of the Sieracki aid

Hawn decisions.

The Petterson case was not concerned with the status of

the Libellant ‘a longshoreman) as a person entitled to re-

cover for unseaworthiness. This Court apparently found

no conflict between it and Berryhill. Indeed, any incon-

sistency between them would have been most surprising,

since both cases came up from the Court of Appeals for

the Ninth Circuit. The instant case bears exactly the same

relation to Petterson as did Berryhill. Furthermore, it must

be born in mind that, whatever the effect of Petterson upon

the “surrender of control” doctrine, this doctrine and the

Petterson decision involve unseaworthiness only. The ex-

tent of surrender of control of the vessel still plays an

important part im negligence cases. This will be further

discussed below.

13

Ill.

This Case Presents No Conflict Between the Circuits as

to Petitioner's Right to Recover for Unseaworthiness.

The Courts of Appeals of several circuits have decided

cases similar to the case at bar, and each decision has been

adverse to the shipyard worker engaged in major struc-

tural repairs or conversion work. The Ninth Circuit's de-

cision in Berryhill has already been referred to. In Berge

v. National Bulk Carriers Corporation, 251 F. (2d) 717

(C. A. 2, 1958), the Second Circuit reached the same re-

sult even though the vessel was not in drydock, as it was

in the instant case. Judge Learned Hand, speaking for

the Court. stated at page 718 that the situation was not

within the doctrine of Sieracki and the decisions which

followed it, for the following reason:

“* * * the answer depends upon whether the work

on which the plaintiff was engaged was of a kind that

the crew of a vessel was accustomed to perform.

Obviously there must be some limit, else the whole

fabrication of a new ship would be included. We can

only say that the reconstruction of a ship was not

traditionally the task of the crew.”

On the same day that it decided the Berge case, the

Second Circuit decided Halecki v. United New York and

New Jersey Sandy Hook Pilots Association, 251 F. (2d)

708 (C. A. 2, 1958), with the majority opinion also written

by Judge Hand. Here the Libelant was permitted to re-

cover because he was simply engaged in cleaning electrical

equipment, which was work commonty performed by sea-

men. As Judge Hand pointed out at page 712, “* * * the

work did not involve any structural changes in the ship,

but was of a kind that was part of the crew’s work, not

only at sea, but when she was laid up for general overhaul.”

In a vigorous dissent Judge Lumbard expressed his opinion

14

that the case did not come within the Sieracki-Hawn

principle because the Libelant “* * * was not doing what

any crew member had ever done on this ship or anywhere

clse in the world, so far as we are informed.”

The issue framed by the majority at page 711 (and

adopted by the dissenting judge) is precisely the same

as that recognized in the instant case and in Berryhill,

Sieracki and Hawn.

“* * * We think that the test is whether the work

is of a kind that traditionally the crew has been ac-

customed to do, and.as to that it makes no difference

that the means employed have changed with time, or

whether defective apparatus was brought aboard and

was not part of the ship’s own gear.”

In addition to the above mentioned appellate decisions

District Courts in two oth=circuits have reached the same

result in cases virtually identical with the case at bar.

ing v. United States, 14 F. supp. 473, 246 F. (2d) 443

(E. D. Pa. 1956); Owens vc. United States, 1958 A. M. C.

216 S. D. Fla. 1957).

Petitioner cites Read ». United States, 201 F. (2d) 758

(C. A. 3, 1953) as being in conflict with the above de-

cisions. With this we do not agree. Actually that court

did not engage in any discussion of the peint now under

consideration but contented itself with citing its own de-

cision in the Hawn case. What it did hold in Read was

‘p. 762) that the ship’s appliances were defective at che

time it was turned over to the repair contractor, so that the

ship was guilty of.a “failure to supply and keep in order

the proper appliances appurtenant to the ship”. That is

not the situation here and the two cases are therefore

auite distinguishable.

15

That the Thiid Circuit is in accord, and not in conflict,

wiih the Second, Fourth and Ninth as to the legal test to be

applied in these cases is evident from its later decision in

Crawford v. Pepe & Talbot, Inc., 206 F. (2d) 784 (C. A. 3,

1953). There he libellant was a tank cleaner employed

by an indepen:‘ert contractor. The court found (p. 790)

that his “work in the deep tanks was clearly ‘ship’s work’

within the meaning of the Sieracki case”. Indeed it pointed

out that at the very time he was injured members of the

crew were similarly engaged in cleaning the adjoining

tanks. It should also be pointed out that the District Court

for the Eastern District of Pennsylvania, in the West case

has interpreted Read as we have here interpreted it.

Petitioner also cited three dicta of the First and Sixth

Circuits as allegedly representing a conflict with the de-

cisions of other circuits. Christiansen v. United States, 192

F. (2d) 199 ‘C. A. 1, 1951); Imperiai Oil Ltd. v. Drlik, 234

F. (2d) 4 (C. A. 6, 1956); Pioneer Steamship Co. v. Hill,

227 F. (2d) 262 (C. A. 6, 1955). This comparison is com-

pletely far-fetched. The Christiansen case was a claim by

a tank cleaner for negligence. The nature of the work

was Clearly that of a seaman as in Crawford. The Drlik case

involved a claim by a shipyard worker who was actualiy

handling mooring lines at the time he was injured, an

activity which is characteristic of seamen. In the Hill case

the court stated only that the libellant was “probably”

within the class of persons entitled to Lhe seaworthiness

doctrine. All three cases involved negligence exclusively.

IV.

This Case Presents No Conflict Between the Circuits

as to the Issue of Negligence.

As Judge Chesnut recognized (R. la, 62), this case was

tried primarily on the theory of unseaworthiness. Never-

theless, he made a complete determination of the isues b,

finding as a fact and conc!uding as a matter of law that the

ship-owner was not negligent. This was chiefly a factual de-

termination which this court should not undertake to re-

view. However, Petitioner still attempts to create the illu-

sion of a conflict between the Circuits on the question of

negligence, and we wiil therefore refer to it briefly.

Petitioner claims that tne United States is liable to him

for failing to provide him with a safe place to work, for

which it has a nondelegable duty. However, this is merely

a duty to use reasonable care to provide a reasonably safe

place to work and is therefore a part of the lew of negli-

gence. Brabazon v. Belships Co., 202 F. (2d) 904 (C. A. 3,

1953); West v. United States, 142 F. Supp. 473 (E. D. Pa.

1956); McMahon v. Panamolga, 127 F. Supp. 659 (D. Md.

1955). It is not an absolute duty imposed upon the ship-

owner, as is the duty to provide a seaworthy ship.

In this field it may be of crucial importance whether

the owner has relinquished complete control of the vessel

to the shipyard. The Petterson case has no bearing upon

this problem, since it involved unseaworthiness and not

negligence. We knovv of no case holding an owner liable for

failure to provide a safe place to work to an employee of an

independent contractor where (1) complete control of the

ship was relinquished and (2) a the time of relinquish-

ment the ship and its appliances were safe and seaworthy

in all respects. Petitioner has never cited any such case.

As good an illustration as any other of the validity of

this proposition is a case strongly relied upon by Peti-

tioner on another point. Pioneer Steamship Company v.

Hill, 227 F. 2d 262 (C. A. 6, 1955). There the Sixth Cir-

cuit held that the determination of negligence vel non de-

pended entirely upon the question of whether or not the

17

owner had surrendered general control and supervision

of the ship to the repair yard. The District Court found

that such control had not been surrendered, and the Court

of Appeals accepted this “crucial finding” on the ground

that it was not clearly erroneous, even though the Appel-

late Court might have drawn a different inference from the

evidence. The District Court stated the basic legal propo-

sition as follows (134 F. Supp. at 368) -

“It is indisputable that the shipowner is not liable

in negligence unless it is established that it had con-

trol of the vessel at the time of the charged negli-

gence.”

In the longshoremen cases (and in some shipyard cases)

the owner surrenders to the independent contractor con-

trol of only a part of the ship. In the instant case the ves-

sel had been completely turned over to the shipyard by

the United States, at which time it had no defects. The

District Court and the Court of Appeals duly noted these

facts and held, both as a matter of fact and as a matter

cl law, that the United States was not liable in negligence

to the Libelant.

There is no conflict among the Circuits on this point.

As a matter of fact, the opinion of the Ninth Circuit in

Petterson carefully pointed out that in negligence cases

the owner's relinquishment of “complete control” may be

important. 205 F. 2d at 479. Petitioner cites no cases repre-

senting a conflict but simply quotes, cut of context, staie-

ments from Halecki and Feinman v. A. H. Bull S. S. Co..

216 F. 2d 393 (C. A. 3, 1954). These cases are not incon-

sistent with the decision below, since in each of them the

owner retained general control and supervision of the ship,

relinquishing, only a limited control to the contractor.

Halecki held on this issue simply that: the negligence of

18

the owner was for the jury. In Feinman the Third Cir-

cuit approved an instruction to the jury which was in com-

plete accord with the proposition stated above.

CONCLUSION

In Sieracki and Hawn this Court established the follow-

ing test: Was the harbor-worker doing a seaman’s work

when he was injured? This mandate has been carefully

executed by the Courts below and those in other Circuits.

Petitioner’s complaint is not that they have failed to apply

the correct legal principle, but rather that the application

of this principle to differing fact situations has produced

differing results (Pet., p. 7). This is not a sufficient ground

for the granting of the Petition.

Respectfully submitted,

Davip R. Owen,

10 Light Street (25th Floor),

Baltimore *%, Maryland,

Attorney for Respondent,

Bethlehem Steel Company.