# Brief for the United States in Opposition — American Stevedores, Inc. v. United States (No. 214) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0465%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1960 ## Text & 8 Saree dont of he Wid Ses eee ee, fe Oy eeaageee 4 4 — "on: Panera son warn o” euariehans onrreD: " eee ——— ete, ‘ " marke ven tun ‘ned: scse zn enveerrame | als : ' ee “ 0 eam iano Eat a . .. t » . . bg ‘ e ¥ e .* ‘INDEX Opinions below Jurisdiction - Question presented Statement. — - Argument Conelusion c{TATIONS Cases: ° Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423-- ewes oe Ryan Stevedoring Co., Inc. v. Pan-Atlantic S.S. Corp., 350 U.S. 124... ---- ye os United States v. Arrow Stevedoring Co., ‘175 F. 2d 329, certiorari denied, 338 U.S. 904_- United States v. Harrison, 245 F. 2d 911___ -- Weyerhaeuser S.S. Co. v. Nactrema Operating Co., Inc., 355 US acon ee mente a) YP ww = a|G Jn the Supreme Court of the United States ‘OcToBER TERM, 1960 e No. 214 AMERICAN STEVEDORES, TNC., PETITIONER igs UN rvep STATES OF AMERICA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _. BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The sindings of fact and conelusions of law of the’ District Court for the Eastern District of New York (Pet. App. 10-15) are reported at 1959 A.M.C, 1808, The opinion of the Court of Appeals for the Second. Cireuit (Pet. App. 16-20) is reported at 277 F. 2d onn ae, ' JURISDICTION The judgment of the court of appeals was entered on April’5, 1960 (Pet. App. 21). The petition for a writ of certiorari was filed on July 5, 1960. The jurisdiction of this Court is ir “oked under 28 U.S.C. 1254(1). 550541 -—60 2 QUESTION PRESENTED Whether, in the circun stances of this case, peti- tioner is liable under its stevedoring contract to ”~ indemnify the U nited States for losses sustained as a result of an injury to one of petitioner's employees. STATEMENT Petitioner, & stevedoring contractor, contracted with the United States for the unloading of the Henry Gibbons, a vessel owned and operated, by the United States (Pet. App. 17, 22). Under the contract, peti- tioner agreed that it would indemnify the United States ‘for any and all loss, damage, liability and ex- pense for * *-* bodily injury to or death of persons ovcasioned either in whole or in part by the negligence or fault of the contractor [t.¢., petitioner], his officers, agents, or employees in the performance of work * * *."" The contract contained two’ ‘specific limitations’’ to petitioner's “general liability and re- sponsibility” to.indemnify the United States. First, petitioner was not to be liable if “the unseaworthi- ness of the vessel or failure or defect of the gear or equipment furnished by the Government contributed jointly with the fault or negligence of the Contractor in causing such * * * injury or death, and the Con- tractor, its officers rs, agents, and employees, by the exer- ‘cise of due diligence, could not have discovered such unseaworthiness or defect. of gear or equipment or through the exercise of due diligence could not other- wise have avoided such * * * injuty, or death.” See- ond, petitioner was not to be liable “if the * * * in- Jury or death resulted solely from an act or omission 3 of the Government or its employees or resulted solely from proper compliance by officers, agents or em- ployees of the Contractor with specific directions of the Contracting Officer’’ (Pet. App. 22-23). Santomareo, a longshoreman ‘employed by the pe- titioner, was injured while participating in the un- loading of the Henry Gibbons. He sued the United States, who impteaded petitioner under its contract of indemnity. After a trial, the district court found that the accident ‘occurred when Santomarce slipped and feil yn some oi] which had run across the deck of the. vessel during the unloading operation (Pet. App. 10-11). This oil had been m a well-traveled and conspicuous part of the deck for at least one and one- half hours before the accident (Pet. App. 12) and was known to Santomareo and other employees of petitioner for a time sufficient to enable them to take steps to prevent the accident (Pet. App. 12). Peti- tioner’s employees did not report the oil to peti- tioner’s hatch boss, who, in turn, the ceurt found, could have reported the matter to one of the vessel's officers and suspende@ work in the vieinity of the-oil until it was femoved (Pet. App. 11). The court found that the accident Was caused by the unseaworthiness of the vessel combined with the negligence of Santomarco, the United States, and pe- titioner. - On the basis of these findimgs, the court determined that the United States was liable to San- tomarco .for one-half of his damage. The court further held that, because” the accident was, under the terms of the imdemmity contract, “oee wioned in. part’ by petitioner’s negligence, the Government 4 was entitled to indemnity from petitioner for the’ amount of its lability to Santomarco. Since peti- tioner was aware of the presence of the oil on the deck, the court concluded that neither of the limita- tions upon, the indemnity clause was applicable. Petitioner appealed from the determination that it was liable under the indemnity clause. The Court of Appeals for the Second Circuit affirmed, holding (Pet. App. 18-19): In this case it was the ‘‘unseaworthiness’” of the ship that “contributed jointly with” a ‘fault or negligence of the contractor,’’ because, - the spot of oil was evident to employees of “Stevedores”’ [t¢., petitioner] other than the libellant, who were at work thereabouts, and Who did not call the attention of any of the ship’s company to it, or ask to have it wiped up or sprinkled with sawdust. Moreover, if that would not have ‘avoided’? the injury— which there is every reason to suppose that it would—by the “exercise of due diligence” they could have wiped up the oil themselves. Hence “Stevedores”’ is liable for any recovery. ARGUMENT The decision of the court of appeals was clearly correct and is not in conflict with the decision of nny - other court. Further review is not warranted. 1. Petitioner contends that the United States was not entitied to indemnity because the Government was responsible for the maintenance of the winch from which the oil had ,originally leaked onto the deck. 5 As both courts implicitly recognized, however, the source of the oil is totally immaterial. What is of | lunportance is the fact that, regardless of where. it came from,’ the oil was on the deck for a period suffi- cient to enable petitioner's employees, who actually knew rt was there; to cover it, clean it up, or report _ it to the ship’s officials. Clearly, their failure to do so Was, In the words of petitioner’s agreement to in- demnify (see supra, p. 2), ‘“negligence.* * * in the performance of work under [the] contract’” which caused “in whole or in part’? the injury to Santo- marco, Further, the clauses limiting the agreement to indemnity clearly do not apply since the oil on. the deck was neither a defect which the employees of peti- tioner “could not have discovered * * * by the exer- cise of due diligence,’’ nor a condition «hich ‘re- sulted solely from an act or omission of the Govern- ment.’’ * ‘The district court expressly stated that the evidence Was insufficient to enable it to make a finding as to what caused the oil to be on the deck (Pet. App. 12). The court of ap- peals stated that it came from a winch which had leaked or overtlowed (Pet. App. 17). | * *Even if, as pets ‘oner claims, the United States were re- sponsible for the winch, this does not support petitioner's con- tention that (Pet. 8-9), if applicable, the indemnity clause is void. Irrespective of who had control of the winch, the fact ‘remains . . . ° » that the injury was found to have been partially occasioned by the negligence of petitioner. As applied here, the indemnity clause is fully consistent with general principles of maritime law, since it ntakes the stevedore liable in indemnity for failure to exercise reasonable care in Se are its duties. Cramady v. The Joachim Hendrik Fisser, 358 U.S. 423: Weyerhaeuser NUN. Co. ve Nacirema Operating Co., roe 355 U.S. 563; Ryan Stevedoring Co., Ine: v. Pan-Atlaintic SWS. Corp. 350 U.S. 124; see also Jonited NStatexw v. Herrison, 24 Fo vd 911, 914 (CLA. 2. Petitioner. also contends ( Pet. 6-7) that the de- cision of the court of appeals is in conflict with United States v. Hurrison, 245 F. 2d 911 (C.A. 9). There, the United States as shipowner was likewise adjudged to be liable to a longshoreman who had shipped and been injured on an oily deck, and. attempted to obtain indemnity from the longshoreman’s employer under contract provisions identical to those involved here. The Ninth Circuit upheld the district court's ruling that the stevedoring contractor was not liable under the contract because the injury: did not result from any negligence of the contractor. In finding that the contractor was not negligent, both courts in Harrison expressly relied on the fact. not mentioned by the petitioner here, that, hefore the accident, the stevedoring contractor had called the oily condition of tie deck to the attention of the ship's officers, and had proceeded to work on the deck only at the insistence of the ship's officers, Ry contrast, in this case the courts below found that petitioner was negligent by reason of the failure of its employees to report the vily condition of the deck te the ship's officers, or to do anything else to remedy the danger- ous condition created by the vil. This finding of negligence, which was fully supported by the evidence, makes petitioner clearly liable under the terns of its contract. ¥), which cites with approval United States vy. Arrovw Steve- dorimg Co.. 175 F.2d 329 (CA. 9). certioran dened, 338 U.S. U4. — ‘ - CONCLUSION For the reasons stated, it is respectfully submitted that the petition for a writ of certiorari should be demied, ‘ . J. Lee RANKIN, Soltertor General. GirorGk Cochran Dove, Assistant Attorney General. Anan S. Rosenriar, * Wintiam BL Myris, Afforneys. AUGUST 1950. © o SC rhtmmlar Pe wr mS OF ce (eee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0465%3A3. Public record. Not legal advice.