Petition for Writ of Certiorari — American Stevedores, Inc. v. United States (No. 214)

JAMB2 R Br,

IN THE

Supreme Court of the United States

OCTOBER TERM 1900

ae AD

AMERICAN STEVr DORES, INU,

Petitioner,

against

UNITED STATES OF AMERICA, et af

Respondents.

. 4

PETITION FOR WRIT OF CERTIORARI TO FHE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT WITH APPENDIX

Bern Brop

Counsel for Petitioner

tM) East 42nd Street,

New York, NO Y¥

Ee ee ew.

INDEX

Opinions of the Courts Below

DN a Ree ak a Bat aS here ohn 2

2:0: 8 See 2 + Ah ee 4 Oo aud

Reasons for Granting Writ Summary of Argument...

Point I—The maintenance of the winch was the obli-

gation of the shipowner, The notice of a condi-

tion of danger caused by the winch, which notes

the Court of Appeals has attributed to the peti-

tioner, has led to the imposition of an obligatiin

on petitioner to whic!: it neither expressly nor

5, 5 SE Es eee coe wd nan in oes

Point 11—The decision of the Court of Appeals is in

conflict with that of the Court of Appeals four the

EF Pee Vota Keke

Pornt 11]—The judginent appealed from, relieving

from liability the wrongdoer whose negligence

eaused a dangerous condition and transferring

that liability, to-one who knew or should have

known of the former's dereliction is inequitable

and contrary to the maritime and civil poliey of

WE IG 6 occ i pte id sdccnspueedesaver tres

TasB.Le or Cases Citep

Bosso vy. Inland Waterways Corporation, 349 U. :

Calderola v. € unard Steamship Company, Court

S. SO

Appeals, 2d Circuit, decided May 51, 1960 2...

Crumady v. J. H. Fisser, 358 U.S. 423 ..........;

*

6

S49

ul ; | INDEX

PAGE

Ryan Stevedoring Co., Int. v. Pan Atlantic Steam:

* ship Corporation, 850 U.S. 124 0... ee eee eee 0

United States vy. Arrow Stevedoring, 175 F. 2d 329

(cert. denied) 338 U.S. 904 ...--65-- 554s e eee i

‘

United States v. Harrison, 245 F. 2d 911 ie iy ithe 5, 6, 7,9

Weyerhauser Steamship v. Nacirema, 359 U.S. 563 . . 5

Statutes CIrep

Rule 19(b) of U.S. Supreme Court Rules .......--- 3

O8 U.S.C. Sections 125414) and 2101(¢) ......-+-- ak oe

INDEX TO APPENDIX

Findings of Fact and Conclusions of Law of District

Court ... 66... e ee: tiaba take a eidm es wade 6 we! 10

Opinion of United States Court of Appeals ......--- 16

~ Judgment Appealed From ......--.++++s+++200008: ai

Excerpts From Contract Between United States and

American Stevedoring Company Ine. ....+-.--. oe

Excerpts From Transcript of Testimony of the Dis-

~ trict Court: . .

Charles Barnes Deitch (For Respondent) :

OP ote SRE OUT CELE LE Coe 23

POA cs canes ev anees Srp Are ere 24

Karl H. Nehring (For Respondent) :

Divect .....-.55. fi RE ee Ye ae 26

IN THE

| Supreme Court uf the nited States.

OCTOBER TERM, 1960

>*

AMERICAN StevEpores, Lnc.,”

Petitioner, —

against

Unirep States or America, et al.,

‘Respondents.

>

§

PETITION FOR WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS FOR THE -

SECOND .CIRCUIT WITH APPENDIX.

Petitioner, American Stevedores, Inc., prays that a writ

‘of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit, entered.

‘in the above entitled case on April 5, 1960,

cs Opinions of the Courts Below

By Findings of Fact and Conclusions of Law dated

“March 13, 1959, the Honorable Joseph C. Zavatt of the

United States Distriet Court, Eastern District of New York,

awarded damages to the libelant against the respondent

9 ‘ . .

and found in faver of the respondent on its impleading

petition against the impleaded respondent. This decision

was not officially reported, but was unollicially reported at’

1959 AM.U. TS08 and is reprinted at.page la of the Appen-

dix to this petition.” On an appeal by petitioner herein

the Court of Appeals for the Second Circuit affirmed the

Distriet Court. —

The opinion-of the Court of Appeals is reported:in 204

EF. 2d 2d: it ds reprinted at page 16 of the Appendix te

‘iis petition,

Jurisdiction

Judgment was entered in the Court of Appeals for the

Second. Cireuit on April 5, 1960 ¢p. 21, Appendix).

Jurisdiction to review the judgment by -writ ‘of eertt-

orari is found in 28 U.S.C. Section 1254, subdivision T, anil

101¢e), as well as in Rule 19b of the rules of this Court

under this Court's power of supervision: over the Federal

Judicial System, and more particularly on the grounds

siat the Court of Appeals for the Second Cireuit has ren-

dered a decision in conthet with the decisions of this Court

‘ind of other Courts ef Appeal. ;

Questions Presented for Review

1 Whether a stevedore must respond in indemnity to

a shipowner for a loss sustained by reason of the ship-

owner's negligence in the maintenance of a winch, result-

ing in a condition of danger, which condition, according to

the District Court and the Court of Appeals existed long

enough te ereate a superseding duty ‘on the part of the

stevedore to remove or correct.

2. Whether such a superseding duty, imposing a legal

eobligation to indemnify arises where the obligation to

3

maintain the winch was solely that of the shipowner and

the only negligence attributed to the stevedore was con-

structive knowledge of the shipowner’s breach.

Statement*of the Case

Libelant, a longshoreman employed by’ the petitioner

Was injured -on «July 6, 1955 while working aboard the

USNS Henry Gibbons moored at Pier 4, Brooklyn Army

Base, New York. Libelant slipped on oil whichehad rin

from a winch across the deck to the rail at the No. 2 hateh.

On two prior oceasions within a short period prior to the

_ accident he had walked over the same streak of oil. Just

before the accident he had passed a ship's officer who was

proceeding from the direction of that hatch. One other

Jongshoreman had seen the ail but neither made any com-

plaint to anyone about it.

The petitioner's hatch boss had worked all day iw and]

out of the hatch and had not noticed oil. After the acei-

dent, he observed that thére was oil which apparently had

leaked from the winch.

The ship’s log showed a dekeciccaned winch. The ship's

captain found sawdust under the winch which had been

placed there by the crew. It was the obligation of ‘the

~erew to place sawdust on oil and remove it from the deck,

The Maritime Superintendent for the United States

Army was in charge of the discharge of cargo in behalf

of the United States Army. It would have been his obliga

tion to report a leaking winch te the ship's officer.

‘Reasons for Granting Writ

Summary of Argument

~The contractual obligation to vroperfy maintain the

winch was that of the vessel. That obligation could not be

shifted to a stevedote by implied contract. Notice to a

4

jongshoreman of a dangerous condition arising out of a

vesse]-owner’s breach of its obligation is not such as would

create a superseding duty on ‘the part of the stevedore

to correct the condition. .

The duty of workmanlike performance of the stevedoring

. +: ° , .1° . .

work does -not include the assumption of © ligations im-

posed upon the shipowner.

The contract between the paxgties requires indemnity

only where the stevedore’s negligence arises out of the.

manner in which the stevedoring work wes performed, not

for a failure to assume the duties placed upon the ship-*

owner,

POINT |

The maintenance of the winch was the obligation

of the shipowner. The notice of a condition of danger

caused by the winch, which notice the Court of Ap-

. peals has attributed to the petitioner, has led to the

imposition of an obligation on petitioner to which it

neither expressly nor impliedly agreed.

—_,

By contract, the shipowner agreed to furnish and —

properly maintain the winch, The petitioner agreed to

perform its stevedoring work in a safe and workmanlike

mannef. Each party to the contract had specific and well

defined obligations. Because of the length of time that a

winch continued-to leak oil, although that would seem to

emphasize the breach of obligation on the part-of the

shipowner, the Court of Appeals on the hasis of that perio

of time has shifted the ship's responsibility to the peti-

tioner. . ; . : :

This holding relieves the ship of the continuous duty

of keeping her seaworthy. This is not the situation where

the unseaworthiness is caused by the stevedore himself

‘and the ship is held to absolute liability-as a result. The

4

vu

decision in the case at bar has placed a premium upon the

negligence of the vessel and its crew which caused the

unseaworthy condition.

Veiled States v. Harrison, 245 Fed. 2nd 911.

‘The shipowner, in the. Court of Appeals, relied upon

Ryan Stevedoring v. Pan Atlantic Steamship Corp., 350

ULS. 124; Weyerhauser Steamship vy. Nacirema Operating

Co. Ine., 355 U.S. 563 and Crumady v. The-J: H. Fisser,

308 U.S. 423. We submit that these cases, rather than

assisting the shipowner’s position, prove the contrary.

In the Ryan case a stevedore was held to impliedly watr-

rant a proper and safe performance of, the stevedoring

work. There it was the shipowner who had failed to dis-

cover the contractor’s breach and the contractor. was held

liable in indemnity for a loss which was caused by the

stevedore’s improper handkng of cargo. Inthe case at bar

the maintenance of the winch and the correction of.any

condition of danger caused by the winch were obligations

of the shipowner.

There is no suggestion in the Weyerhauser case to the

contrary for there, too the stevedore had created the con-

dition Which caused the accident. The decision. restated ©

the doctrine that a stevedore would be held liable for a

substandard performance under such circumstances unless

there was conduct on the part of the vessel sufficient to

preclude recovery for indemnity. No definition of that.

conduct was given but we suggest ‘suc ch conduct is pyesent

here. ;

In the Crumady case, it was held that although the cut-

off device of the ship’s winch was improperly set, it was

the manner. in which the stevedore operated the winch

which brought into play the unseaworthy condition which

led to the loss for which the ship was held entitled to in-

demnity.

6

‘

The petitioner in the instant case neither created the

dangereus condition nor did it by its neghgenee bring inte

existence ans unseaworthy condition. Its only fault wes

imputed knowledge of the shipowner’ = breach of the won

tract, Which breach the Court of Appeals as erroneousty

condoned hy shifting liability to the petitioner,

t

POINT Il

The decision of the Court of Appeals is in conflict

with that of the Court of Appeals for the Ninth Circuit.

The holding is squarely in conflict with United States

v. Harrison, 245 Peds 2d SFL (Ninth © ireuit), which not

only involved the identical Army contract but also -was

concerned with a set of facets strikingly similar to. those

in‘ the ease at bar. ins

In United States v. Harrison, supra, a longehoreusn fell -

on an oily deek which had not been covered with sand. The

Court held that the. covering of the oil with sand or saw:

dust was the obligation of the ship and its crew and not

the stevedore’s responsibility.

The Court said at page 91):

Any attempt to require the Stevedoring Company

to he'd the government harmless under circumstances

found in this case, by stipulations of a contract or

otherwise, would be void. The anseaworthiness of this

vessel created a non-delegable duty upon the agents

of the government to render her seaworthy immed?

ately, The defect was not latent, but was patent ty

everyone who saw the deck, If the defeetive eondi-

tion had heen concealed and the Stevedoring Com-

pany had heen the first to discover it, then a burden

might have been placed upon the latter under the

contract. But the duty to keep the ship seaworthy,

where the conditions are open and notorious to all who

looked, is not only nondelegable, but continuous upon

the shipowner, master and crew." +

There, as here, the shipowner argued that the provisions

ef the contract in the exact wording found in paves

13 to 14 of the Appendix should hold the stevedere

because it, through the exereise of due diligence, could’

otherwise have avoided such damage or injurv. The

Ninth Cireuit rejected this contention, pointing out that

the stevedore had not ereated. the condition and its. im.

puted knowledge of the dereliction by the ship did not eon.

stitute the active negligence found on the part of the steve-

dore in United States vo Arrow Stevedoring, WA ked. 2d

829, vert. denied 338 U.S. 404 where indemnity had been

allowed. | .

The contention that the stevedore could have avoided

damage rejected in United States +. Harrison Was the sole

basis for the Court of Appeals holding petitioner liable for

indemnity in the. instant. case, Actually the ‘facets are

stronger in favor of the stevedore here, beeause in this

case the oil came from a winch, the maintainence of which

“Was exclusively that of the shipowner, whereas ‘in Harrison

the oil dropped from the jeeps which constituted the earge

being loaded by the stevedore. The cargo handling created

the condition there: here the ship’s machinery’ created the

condition.

The language of the eontract (p. E2 of the Appendis i

obviously refers to-a condition which the stevedore, hy

his own act has created or which has brought- into plas

an unseaworthy condition either of which would not have

‘resulted had ‘the stevedore’s work been properly per.

formed.

Nothing in this language suggests that actual or eon.

structive notice of a shipowner’s default in) the per:

formance of its obligation requires the stevedore to as

sume that obligation whieh was foreign to its contract «and

8

specifically that of the vessel. Such'is the rationale of the

decision by the Court of Appeals of the Ninth Cireuit and,

we submit, the proper holding. .

The miseonception by the Court of Appeals in the case

at bar of the obligation imposed upon the petitioner herein

is emphasized by a subsequent, irreconcilable holding by the

* same Court, Calderola v. The Cunard Steamship Company,

decided May 31, 1960 (slip sheet p. 1885) in which it was

held that the plaintiff's knowledge of grease on a ladder was

not -binding upon his employer and indemnity was disal-

lowed. Although rejected by the Court, there, was evidence

that the cargo fall while being used by the longshoreman

may have caused the step to become slippery. Alleging

igeonsistency with the Santomarco holding, the Cunard

Steamship Company has served a petition for rehearing

therein.

POINT III

The judgment appealed from, relieving from lia-

bility the wrongdoer whose negligence caused a danger-

ous condition and transferring that liability to one

‘who knew or should have known of the former's

dereliction is inequitable and contrary to the maritime

-and civil policy of this Court.

A denial of a writ of certiorari would leave standing

a decision holding a stevedore liable for knowledge im-

puted to him of a dangerous condition caused by negli-

gence of the vessel in the maintenance of its winches.

Such is not the state of the law and if a contract purport

to provide for the escape from liability of the wrongdoer

at the expense of one who at best should have known at

the other's derelietion,-such contract would be void as a

matter of public poliey. .

We refer the Court to its decision in Bosso vy. Inland

Waterways Corporation, 349 U.S. 85, where a contract

was ‘construed which purported to exempt from all lia-

9

i

bility for negikence. That provision was held to. be

invalid. The same policy considerations set forth therein

would appear to disapprove of any rule of law which

would permit the negligent shipowner from transferring

its obligation to the stevedore. Although the Bosso ease

was not cited by the Court of Appeals in U.S. v. Harrison.

supra, the same principle was applied in declaring the

contract void. ,

The judgment appealed from, if allowed to stand would

constitute authority for a stevedore being held liable for

any condition of danger aboard a vessel as long as that

condition existed for an appreciable period of time. Such

a result, we submit, would not he -predicated upon a true

evaluation of the law as it now exists.

To preserve uniformity of standards of review, to af.

ford petitioner its only opportunity for review’ of «a

judgment against it, it is respectfully requested that the

petition be granted and having been granted, the judgment

of the Court of Appeals for the Second Circuit and of the

District Court be reversed and the impleading’ petition

of the United States of America against American Steve-

dores, Ine. be dismissed.

Respectfully submitted,

Bern Bupp,

Counsel for Petitioner.

10

APPENDIX TO PETITION.

Findings of Fact and Conclusions of Law

of District Court.

(469] The above entitled cause came on regularly for

trial and the cotrt having duly considered the evidence

and being fully advised in the premises now finds the

following: ,

Findinas of Fact

1. On Julv 6, 1999 the libelant, Thomas Santomareo,

was in the employ of American Stevedores, Inc., Cherein-

after referred to As American), the respondent-impleaded,

The libelant was a longshoreman. He was engaged that

dav in the course of his employment as ea hela operator

in connection with the loading of the U. . Henry Gib-

hins, a vessel owned and operated by ei T nited States,

the respondent herein,

(470) 2. Prior to 4:30 P.M. the libelant worked at hateh

number 4 of the vessel. At abeut that time he and his

eang Were shifted forward. to work at haich tumber I,

I) watkine forward on the starboard side of the vessed,

the libelant passed at one point between the starhoard

wineh for the number 2 hatch and the pontoons used. to

cover hatch “miumber 2 which were stacked inboard the

starboard rail of the vessel. At this point he saw what

the court finds to bea slick of oil approximately six inches

Wide extending from the winch, across the deck. and

‘thence under the pontoons toward the starboard rail A

number of persons had) walked) through the slick sind

there were oily tracks on. the deck on either side of the

slick,

8 ‘The libelant walked safely through this area to his,

place of work at hateh yumber 1, At some time prior

ll

Appendix to Petition.

te 6:00 P.M. the jibelant felt in need of a drink of wa-

ter. Knowing that there was water in. the Vicinity of

hateh number 4, he proceeded aft on the starboard side

of the vessel, and again passed safely through the oil slick

and tracks in the vicinity of the starboard winch of hateh

~ number 2

4. Having refreshed himself, and Carrving a container

of water for a co-worker, the libelant at about 6:00 P.M,

"proceeded forward again along the path which he had

twice previously travelled: This time, in attempting to

[471] pick his way through the slick and the oily tracks,

he slipped on the oil on the deck fell, and struck his head

and left hip on either the wineh or the deck.

. s

9d. The oil on.the deck was seen by the witness D’ Ambra,

‘a longshoreman employed* by American aboard the ves-

sel on July 6, 1955, at the time of the accident, and earlier

thateday. He made no report as to the presence of the

oil, The same oi] was seen by the witness Braeco, Ameri-

can’s hatch boss at hatch number 2, at the time of the ae-

cident. Prior to that time no one had reported the pres

ence of oil to him. Had anyone done so he would have

reported the matter to one of the ship's officers and sus-

pended work in the vicinity until the oil was removed.

6. It was the duty of every member of the ship's crew

to ifmmediately place sawdust ie any oil observed on

the ship’s deck. It was the duty of American's employees

to keep the areas in which they worked in a clean and

safe condition. With regard te the condition existing

here, it was the duty of American’s employees who were

aware of the presence of the oi! to cover it: prior toccon-

tinuing work, or to notify a stevedore foreman or hate!

hoss, who would then have the duty, prior to permitting

work to continue, of either removing the dangerous con-

Appendis to Petition,

dition or reporting the presence e of the oil to the ship's

officers,

7. Fhe oil which caused the libetant’s fall [472] re-.

‘mained in a conspicuous and well traveledsarea of the

deck for a period of at least one and one-half hours prier

to the accident.

s. The court finds that the libelant and D’Ambra, as

well as other employees of American working aboard the

vessel, knew of the presence of the oil a sufficient: time

hefore the accident’ to have been able to take steps to

prevent its OCCUPrENce,

9, The ship was being loaded in’ preparation for a

voyage. © There was a crew aboard, including an oiler,

whose sole job it was to care for the winches. The ofti-

cers Of the vessel were in control thereof at all times

prior to the accident.

10. Neither Ameriean’s employees nor the ship's per

sonnel took any steps whatever to report, or to alleviate,

the danger caused by the presence of the oil on the deck,

11. The evidence is insufficient to enable the court’ to

raake a finding as to the cause of the oil on the deck. In

view of the eonciusion, trfra, that. the libelant) was con

tributoriiy negligent in proceeding through an’ area of

known danger without reperting or acting to remove the

oil from the deck, the court makes no finding’ on the con

flicting evidence ‘as to whether the fibelant may have

chosen a safer route on the port side of the versel to ac

complish his mission,

[473] 12. "Ara result of the inetd the libelant sul-

fered a cerebral concussion, contus ion of the occipital re

13

aAppe ndixv tu Petition.

goon of the scalp. and contusion and sprain oof the left

lower back and left hip. His medical expenses occasioned

by these injuries amounted te- $382.35. He could. pot

work for a-period of seven months following the acci

dent, and could at no time after the accident work at

his usual employment as a tongshoreman heeause of a

recurring dizziness which he suffers upon changing pe-

sition. The libelant retired from work perianenthy: in

the summer of 1957 beeause of his age. The court. finds

that the libelant lost earnings of $4,800 as a result of the

accident, and that in the absence of contributory mesti

gence the libelant would be entitled to recover $1,000 for

the pain and suffering occasioned by his injuries.

13. The contract between the respondent and American

under which American performed the stevedoring serv.

ices on the day in question provided as follows:

a . . . - ‘

“Chavse 12. Liability and Insurance.

a. The Contractor

(2) shall be responsiblé for and shall hold the

Government .harmless from any and all loss, dam

age, liability and expense for ** ° bodily injury te

or death of persons

occasioned either in whole or in part bio the neg

ivonce or fault of the contractor, (474) his officers,

arents, or employees in the performance of work

under this contract. ‘The general liability and re

sponsibility of the Contractor under this clause are

subjcet only to the following specific limrtations.

hb. The Contractor shall not be responsible to

the Government for and does not agree to hold the

the Government harmless from Joss or damage te

property or bedily injury to or death of persons:

14

Appendix to Petition.

(1) If the unseaworthiness of the vessel or fail-

ure or defeet of the geas or equipment furnished

hy the Goverriment contributed jointly with the

fault or negligence of the Contractor Im eausing

such damage, injury or death, and the Contractor,

its officers, agents, and emplovees, by the exercise

of due Ailigence, could not have discovered such

unseaworthiness or detect of gear or equipment or

through the exercise of due diligenee could -not

otherwise have avoided such damage, injury, or,

death.

(2) Tf the damge, injury or death resulted solely

fromoan act or omission of the Government or its

emplovees or resulted, solely from = proper compli.

ance by officers, agents, or employees of the Con-

tractor with specific directions of the Contracting

Officer.”* | )

Conclusions of Lau

1. The oil uport whieh the libelant slipped was an ua

seaworthy condition and its presence constituted a breact

of the respondent's absolute and rion-delegable obliga

tion to provide the libelant, with a seaworthy vessel upon

which to perform his work,

475) 2. The long-standing and conspicuous nature ef the

dangerous conditron existing herein are deemed sufficient

to charge the respondent's officers and employees with:

knowledge of its presence, The court concludes, on thi-

basis, that the respondent was negligent in failing to

cover or otherwise remove the oil from the deck.

3. The libelant was negligent in failing te report the

presence of. the oil, in failing to cover or otherwise re

; ; te -

Appendiu to Petition.

move the oil on each of the three occasions on whieh he <aw

it, and, under all the circumstances, in attempting to’ pro-

ceed through an area of known danger. The court eon-

cludes that the libelant's negligence ‘was fifty per cent of

the producing cause of his INJUFIES,

+. The employees of American’ were negligent in fail-

Ins to remedy or report a danger known to them,

o% The libelant is entitled to a decree against the re-

spondent in the amount of $3,091.18, i. e., one half of the

total, damages of $6,182.36 suffered by the libelant as a

result of the accident,

~6. The injuries te the libelant were occasioned in part

by the negligence of American's employees in the per-

formance of work under the contract. The eniplovees of

American knew of the existence of the unseaworthy con-

dition causing the libelant’s Injuries, and the exculpatory’

provisions of American's indemnity agreement aré in-

applicable, [476] Under, the express provisions of the

contract the respondent is entitled to a decree in’ the

amount of $3,091.18 against the respondent-impileaded,

indemnifving the respondent for the damages for which

itis held Hable to the libelant.

‘The parties will settle a decree in conformity herewith,

and will file therewith such proposed additional findings

of fact and conclusions-of law as are considered by them

to be necessary,

Joshpu C. Zavarr

SA Fee ae 2

16

Appendix to Petition, ~~

Opinion of United States Court of Appeals.

UNITED STATES COURT OF APPEALS*

For THe Seconp Circuit

No, 234—#)etober Term, 1959. iL

(Argued March &, 1960 Decided April 5, 1960.)

Docket No. 29835

+ —

v

THOMAS SANTOMARCO,

Libellant,

—

Tue Unitep States oF AMERICA,

Respondent,

—and—

-%

AMERICAN StTEVEDoRES, INc.,

. Respondent.

Before:

Lumparp, Chief Judge,

Hanp and Lewis, Circuit Judges.

a

7

On appeal from a decree in the admiralty of the District

Court for the Eastern District of New York, Zayatt, J.

presiding, holding the United States liable for injuries

suffered by the libellant, a longshoreman, on board a vessel]

of the United States, and holding the Ameriean Stevedores,

Inc. liable to the United States on a contract of indemnity.

2

av

17

: Appr neler ty I fition.

Morris Cizxer, for the libelant.

Water L. Hopkins, for. the United States.

Abert S. CoMMEtTE, for the American Steve-

dorces, Ine,

ee nn ct - - —

Hann, Cirenit Judge:

This is an appeal from a decree in the admiralt. of the

District Court for the astern District of New York hold-

ing the United States liable to the libellant, a longshore-

man, for injuries suffered on board the ship, ** Henry

Gibbins,’* and also lrolding the American Stevedores, Ine,

(which we shall call *Stevedores’’) liable te the United

States for indemnity under a contract between the parties,

The facts were ax follows, |

The ship, ** Henry Gibbins,” owned by the United States

Was being loaded in Brooklyn, her starboard side ayainst

the pier. The libellant was a longshoreiman, emploved by

Stevedores,"" and was at. work a winch operator at

the forward hatch (No. 1).- At some time béfore four p.m.

that day he had been at work at an after hatch, No. 4,

and had moved to the forward winch. There was a winch

at hatch No, 2, that had leaked oil, either heeause it had

heen overfilled, or was mechanically injured. The oif ran

from the bottom of the winch across the deck. under some

pontoons temporarily placed nearby, and thence to. the

starboard rail. Betweeri the winch andthe nearest pontoon

‘the oil had spread to a streak six inches wide, and it had

heen tracked to a greater width by the foot-prints of a

number of persons who had -passed between the winch

and the pontoons during the! afternoon. Earlier in the

afternoon the libellant had walked through this passage

on his way forward from hatch No. 4 to hateh No. 1, ant

at about six o'clock, Wishing to get a drink of water, he

18

Appendix to Petition:

again walked through it to hatch 4. On counting back

with water for another workman he walked through the

passage a third time, and that time he slipped on the oil

and fell on the deck, injuring his head, back and left hip.

Judge Zavatt held the United States liable under the

maritime law -beeause the libellant’s injuries were the re-

sult of an unseaworthy condition af the deck, but he also

held that the Hbellant: had been guilty of contributory

negligenc e because he proceeded through an area of known

danger without reporting or acting to remove the oil from

the deck.’’ He made no finding as to whether the libellant

could have avoided the spot of oil by bringing back the

water on the port side. Because of the libellant’s contrib-

utory negligence he reduced h - recovery by fifty. per cent.

The liability, so reduced, the judge.imposed on **Steve-

-dores’’ under its contract to indemnify the United States,

which therefore became only secondarily liable. That con-

tract provided that ‘Stevedores’* would “hold the Govern-

ment harmless from any loss * * * for bodily imine?”

of persons’; but to this envagement there were two eX-

ceptions of which only the first is relevant here. This ex-,

ception absolved **Stevedores,”” if ‘the unse: aworthiness of

the vessel or failure or defect of gear or equipment fur-

nished by the Government contributed jointly with the.

fault or negiigence of the Contractor * * * and the Con-

tractor, its officers, agents, and employees, by the exercise

of due diligence eould not have been [sie] discove red such

unseaworthiness or defect of gear or equipment or through

the exercise of due diligence could not otherwise have

avoided’’ the injury: In this case it was the ‘‘unseaworthi-

ness*’ of the ship that ‘contributed jointly with’? a ‘fault

or negligence of the contractor,’’ because the eid of oil:

was evident to employees of ‘*Stevedores"’ other than the

libellant. who were at work thereabouts, and who did not

eall the attention of anv of the ship’s company to it, .0

Ig

Appr ndiv to Petition.

ask to have it wiped up or sprinkled with sawdust, More-

over, if that would not have ‘taverded’* the Injury—~ which

there is every reason to suppose that it would -by the

“exercise of due diligence’ they could have wiped up thes

oi themselves, Hence ‘Stevedores’* is liable fer any Fe.

covery, :

.The liWellant appeals from the award because, as we

have said, the judge allowed shim only half. the dam-

ages suffered. He argues that he was not negligent. and

that in any event the amount allowed for pain amd suffer:

ing Was insufticient. As to contribiitory negligence, like

all negligence, it présupposes a choice hetween conflicting

Values, and in the case at bar we need not say that, if the

libellant had had to choose between an immediate recavery

of property of value and taking the. risk of the slippery

deck, he would have been negligent. Although it is cus:

tomary to say that negligence is a question of faet. it

always involves an appraisal of values, and while ordi-

narifly values are to be appraised by the standard com.

nonly accepted fin the elremiustanees, that is met their

inevitable measure. Wee need not, therefores consider

Whether most persons in the lihedant‘s position wold have

used the passage. For argument. we will assume that they

Would, but it does nor follow that it was not nevligent te

do so. ** What usually js dene may be evidence of what

ought to be done, but what ought to be dome is fixed: ty

a standard of -reasonable. prudence, Whether it Gsualiv is

complied with or not.’ Holmes, J. Teras & Paci Rail.

way Co. Vo Behumer, VSO US, 468, 4700 Ordinary care,

then * * * implies the exereise of reasonable diligence, and

reasonable diligence implies, as between the emplover and. -

employe, such -wWatchfulness, caution, and) foresight.) as,

under all the cireumestances of the particular services, a

corporation controlled by earefuls prudent officers ought

to exercise.” Wabash Rarly aM Corn, McDani ix. 107: % . &,

20

Appendix to Petition.

454, 460; S. H. Kress @ Co. v. Telford, 240 Fed, (2) 70,

ta -(C,- Ac OS Fae 2. Hooper, 60 Fed. (2). 737, 740

(C. A. 2). It appears to us that, however likely it may be

that the ordinary longshoretian would have taken the risk

of walking on the oil spot, to do so involved an obvious

hazard and was an impermissible imprudence.

As to the insufficiertey of the award of $1,000 for suffering

and permanent injury, it is idle to seek any objective test,

even more idle than to seek an objective test of negligence

. itself. It is true that at times we have increased such

awards, as for example, United States Fidelity & Guaranty

Co., 152 Fed. (2) 46; but that is only in extreme cases.

Carroll y. United States, 133 Fed. (2) 690, 693, 094 (C. A.

2): Lukmanis v. United States, 208 Fed. (2) 260 (C. A. 2).

In the case at bar, were I to decide the issue alone, I should

raise the award, but my brothers think that the evidence

is not strong enough to justify such an unusual exercise of

appellate power. For that reason the decree. will be

affirmed.

Decree affirmed.

a

31.

Append to Petition.

Judgment Appealed From,,

UNITED STATES COURT OF APPEALS

For THE Seconp Circvrr i

At a Stated Term of the United States Court of Appeals, .

in and for the Second Circuit, held at The United States

Courthouse in the City of New York, on the fifth day of

April one thousand nine hundred and sixty.

Present: Hoy. J. Epwarp Lumparp, Chief Judge,

Hon. Learnep Hanp,

How. Davin T. Lewis, Circuit Judges,

re

THOMAS SANTOMARCO,

Libelant-Appellant,

v.

UNITED STATES OF AMERICA,

Respondént-Appellunt,

and

AMERICAN STEVEDORES INC.,

Impleaded-Respondent-Appellant.

—+>-

Appeal from the United States District Court for the

Eastern District of New York. |

This cause came on to be heard on the transcript of ree-

ord from the United States Distriet Court for the Eastern

District of New York, and was argued by counsel,

ON CONSIDERATION WHEREOF, it is now hereby ordered, .

adjudged, and decreed that the decree of said District

Court bé and it hereby is ailirmed: with costs to the re-

spondent-appellant (United States).

A. Dasiet Fusaro,

SS s,s

oy)

App ndix tu Petition.

Excerpts From Contract Between United States and

American Stevedoring Company Inc.

h. Gear Supplied by Government. The Government (at

its own expense) shall furnish and snaintain in good work-

ing order the, followings blocks on booms, booms, cranes,

wire and/or rope falls rigged, gantlines rigged on booms,

hatch tents, lighters and floating derricks, lights on wharves

and vessels, pallet boards, power dnd steam necessary,

preventors on booms, winches. Floating derric ‘ks’ and dock

cranes will not be used whea, in the opinion of the Con-

tracting Officer, the ship's equipment can be used satis-

factorily. ,

Chause 12. Liability and Insurance..

a. The Contractor.

* . * . © .

(2) shall be responsible for and shall hold the Govern-

ment harmless for any and all loss, damage, liability and

expense for * * *- bodily injury to or death of persons

oceasioned either in whole-or in part by the neghgence or

fault of the contractor, [474] his officers, agents, or em-

plovees in the performance of work under this contract.

‘The general liability and responsibility of the Contractor

under this clause are subject only to the following specific

“limitations.

bh. The Contractor shall net be responsible to the Gov-

ernment for And does not agree to’ hold the Government

harmless from loss or damage to property er bodily injury

to or death of persons:

(1) If the unseaworthiness of the vessel or failure or

defect of the gear or equipment furnished by the Govern-

ment’ contributed jointly with the fault or negligence of

the Contractor in causing such damage, injury or death,

——— ee

e

23

Appendix to Petition.

and the Contractor, its officers, agents. and.emplovees, by

the exercise of due dilizence, could not have discovered

such unseaworthiness or defect .of fear or equipment or

through the exercise of due diligence could not otherwise

have avoided such damage, injury, or death.

(2) If the damages injury or death resulted solely from

an act or omission of the Government or its emplovees or

resulted solely from proper compliance by officers, agents,

or employees of the Contractor with specific directions of

the Contracting ¢ ‘Mag. wi

Excerpts Prom Transcript of Testimony of the

District Court.

Cartes Barxes Derren, called as a Witness on behalf

of ‘the respondent, having been first duly “sworn, testified

> * ™

as follows:

Dicect Examination by Mr. Wilson:

Q. What do you do for a living, Mr. Deiteh! A. Marine

superintendent for the U.S. Army.

Q. Where do you work? "[ 182) 4. Brookivm Army Ter-

mninal, Brooklyn. Ssth Street.

Q. How long have you worked there, sir?) A. It will

be eighteen vears in Mareh,

Q. What does vour werk invelve? ust What de vou de?

‘A. 1 superintend the loading, discharzing. embarkation

of passengers, debarking of passengers, general pler werk,

Q. What, if any, relation de you have with the steve-

dering people who Joad and discharze the Government

Vessels?) AL TL superintend the operation for the Army.

YW. How long have vou been at the Army Base doing

that? A. The Brookivn A rv Ferninal?

2+

Appendix to Petition.

Q. Yes, sir. A. Well, I was .connected with them in

Staten Island, it is alt one branch, since 1941, with over-

séas duty—

QQ. Excuse me? A. With some overseas duty.

Q. Where were you working in July, 1955? Do you

remember? A. Pier 4.

(). Where is that?) A. Brooklyn Army Terminal.

" {183} Q. Do you remember whether or not that work

involved the U. S. N. S. Henry Gibbins during July, 19552

A. Yes, it did. :

Cross Examination (continued) by Mr. Commette:

(). Mr. Witness, you said that you, as a representative

of the Army, superintended the operation of ¢he steve-

doring? Is that correet? A. Yes, sir.

Q. Now, would you please tell the Court in a little

more detail what you mean by superintending the opera-

tion of the stevedores for the Army? <A. Well, I order

‘the gangs. I see that the cargo is dispatched properly,

and properly handled.

Q. Does that bring you aboard the vessel throughout

the day when the cargo operations are proceeding? A.

Off and on, yes, sir.

Q. And do you have anything to do with reporting

any conditions to the skip’s personnel, that is, any con-

ditions that you feel should be changed with respect to

the stevedoring operation? A. Yes,sir. . +

Q. Would it be the customary practice in the event

that there were come condition that had been reported

by longshoremen to their foreman, that the foreman re-

ports to [210] you, or would there be a custom and prac-

tiee for you to report any condition that you knew of

directly to the ship? A. That is correct.

all

25

Appendix to Petition.

Q. In ‘the event that sometime during the course of

the work you yourself saw some condition in connection

with the stevedoring work that required a change on the

part of the ship's personnel, would you personnally report

that to the appropriate officer on the part of the ship?

A. Yes, sir.

@. And is that usually the chief officer who is in charge

of deck operations? A. Or the officer on wateh. Usually

it goes to the cargo officer. , /

Q. In the event that ‘there had been any complaint to

you about a leaking winch, ‘or oil leaking from a winch

brought to your attention, would that be something that

you would communicate to the ship's officers, one of the

ship’s officers? A. Yes, I would.

@. And that would apply not only to the operation of

the winch, but to the leaking oil from the winceh—would

that also be something that you would report to the

appropriate ship's officer? A. Any safety factor I al-

Ways report.

[211] Q. Then from then on it would be up to the ship's

personnel to clean the oil, or whatever had to he done?

Isn’t that true? A. Yes, sir.

e ” . s ” & .

The Court: Now, what else do you mean by superin-

tending the loading operations?

The Witness: Weil, there is proper stowage. Of course

we have other men that watch that, vou see, outside of

mvself,

The Court: Well, to see what? You say ‘proper

stowage.’’ Whatdo vou mean?

The Witness: Yes, sir. :

The Court: What do you. mean by that? What is

your concern with proper stowage?

The Witness: Well, for the safety of cargo, Safety

of the ship. And availability. of discharge. No over

26 P

Appendix tu Petition.

storage. And more or less general supervision of the

loading of cargo.

The Court: All right.

. Do you give orders to the stevedores?

The Witness: Yes, sif.-

(214) The Court: What kind ef orders would you give

them? ey

The Witness: | instruct them where: which hatches te

work: what to. work: and the time to work: and ‘when to

knock off.

Kari H. Neurine, called as a witness on behalf of the

- teapondent, “hating heen first duly sworn, testified a-

follows:

The Court: Assuming, Captain, that on the th in the

late afternoon, ‘or say about six e’clock, assuming for the

“moment that there were oil on the deck near that winch.

ani someone saw it—someone connected. with the crew—

what would they do with that oil?

The Witness: The first thing they would have done i:

spread, — The next thing they would have done i-

clean it up, if it was like it would run over the deck, and

the peers ‘us far as this going back to the area where

the sawdust is, it is)smy belief that that sawdust was put

there to soak up any oil that might come out of the winch.

The Court: No. Forget the particular sawdust vou saw,

If someone at around six o’clock the might before had

seen the oil near that wineh? |

The Witness: They would clean it up. ,

(227). The Court’ They would have thrown sawdust on

-it? |

The Witness: First of all.

27

App nebia tas I’. tition.

The Court: Now, they wait until the sawdust would

absorb the oil?

The Witness: Yes.

The Court: How long would that take?

The Witness: It doesn't take Very long. .

The Court: Then you say the ‘Vv would & lean it up.

Now, how much tine would elapse from the time: thes

threw the sawdust dewn until the: time they clean tthe

Whole thing up?

The Witness: Sonie ‘Times ont? a matter of ten or fifteen

minutes to feta man to work.

The Court: So that if there had been ol near that

Winch at six o’clock the previsius day, the sawdust that

you saw there on the tth would not be the sawdust thst

Was thrown to‘cover up ‘and absorb the ot that someone

Saw at six o'clock the previews day: is that right?

The Witness: The sawdust underneath the easing could

be the sanie, ves,but if there hid been any sawdust there

on the other part of ait. if there wits any oil there new,

I examined the deck

The Court: Now, woutd that mean that ‘im vour (20s

opinion that the sawdust that was under the exsine was

there, heeause in cleaning Up. thes had not cleaned up all

the sawdust? . :

The Witness: They left oit there in cise there Was ATTA

mere oi leaking out, so itv otd he abserked right there

It wouldn't get ams chanes te ran ong nN place