Petition for Writ of Certiorari — Arena v. Luckenbach Steamship Co. (No. 396)

~ ANDY

i acre ata!

IN THE

Supreme Court of the United States

Ocroper Term, 1960

~~

hRaNK ARENA,

—V— e

LUCKENBACH STEAMSHIP Company, INc..,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR .THE FIRST CIRCLIT

GeoRGE J. ESGELMAN

$4 Whitehall Street

New York 4. New York

Attorney for Petitioner

a

TABLE OF CONTENTS

: PAGE

Petition ror Writ of CERTIORARI

| 2 ee NR

Jurisdiction ...... Bess dceecratumsorcinnparnsipanshvennsnesnens connie ?

Questiohs Presented .............. ae ae Ss MERE 2

" No Statutes Involved ............,......... & 2 dns oe RO fe 4

6 8 a re oe

CONCLUSION ............. oe aees: i 1 1 9 skeeia Seta nae vache eens *

APPENDIX: :

_ A. Opinion of the District Court 20002000000. WS

B. Opinion of the Court of Appeals 0000000000... 1%

C. Opinion of the Court of Appeals on Petitioner's

Motion for Rehvaring ............................ ee 30

D. Judgment of the Court of Appeals ............. keds ai

TABLE oF Citations

Cases: :

Chicago & N. W. R. Co. v. Bower, 241 U. S. 470: 36

ee ee ener ee 11

= ve W eyerhaeuser S.S. Co., 236 I’. 2d S48:

2. C. A.) - Sees Ninn, Sa eeicmeamame bs

Considine v. Black Dieneed 3 s.S. aan (D.C. dD.

Seen ee We OO, BOS oc... ies . §

PAGE

Cowan v. Inland Waterways isi 121 F. Supp. 683

(i OL Oe . 0) Jeeneennertcesrteeperrntennsnret rer seerrerrt erent 13.:

Craumady v. The Joachim H. Fisser, 358 U. S. 423;

79 S. Ct. 445; 3 L. = 2d 413 sesessssneseessneennssnsenseenee 12

‘DiSalvo v. Cunard S.S. Co., 171 PF. Supp. si (D.C.

“Sf 2 geile pane cobstar sacicaaesnlanciaptibeetas Sesonsesssseet 9

Ferguson v..Moore-McCormack Lines, Inc., 352.U. S.

521; 77 S. Ct. 457; 1 L. Ed. 2d S11 ............................ 4,12

Grillea y, United States, 232 F. 2d 919 (2 C. C. A.) _ 10

Hecht Co. v. Jacobsen, 180 F. 2d 13 (C. A. D.C.) ....... WW

Johnson v. United States, 333 U.S. 46; 685. Ct. 391. 138

- Mitchell v. Trawler Racer, Inc.: 361 U. S. 808; 80

S. Ct. 926; 4 i eset 9,11

Palazzclo v. Pan Atlantic S. S. Corp., 211 F. 2d 277

RA STS “hn BpeeeeUrariok - RUD ene te densenlon are eee Se loan ere iz

Petterson v. Alaska Steamship Co., 347 U..S. 396; ©

74S. Ct. 601; 98 L. Ed. 798... aieemcaeeieeona coe

Pope & Taibot, Inc. v. Hawn, 346 U. ‘S. 406; 76S 3. Ct.

es i ca a esiecnaecraren oy 2

Rich v. Ellerman, 278 F. 2d 704 (2 C. C. fy Vaasa . Ww

Rogers v. Missouri P. R. Co., 352 U.S. 500; 775. Ct.

is 0 Te Oe resists rcicreceectentcsshcesiercncees 2

Rogers v. United Petre Lines, 347 U. S. 984; 79

OR as OB Bis Fa Re icnrccsettntneescsciensens 9, 10

Seas Shipping Co. v. Sieracki, 328 U. S. 85; 66S. Ct.

ee is Be I. phason ce beenccncbuasbhisnannicncmunsioiens tetas 8, 11

ili

PAGE

Texas & Pac. Ry. v. Behymer, 189 U. S. 468; 23S. Ct.

See Oe Se Oe nc er 11

United New York & New Jersey Sandy Hook Pilots

Assn. v. IHalecki, 358 U. S. 613; 79 S. Ct. 517; 3

ap ae | ee Siekasestatnlotaniauaaneatesedeties br eniteinn 8

Weyerhaeuser S.S, Co. v. Nacirema Operating Co.,

Inc., 300 U.S. 563; 78'S. Ct. 438; 2 L. Ed. 2d 491. 12

i ess se

IN THE

Supreme Cot of the United States

Octrosper Term, 1960

rd

. - <i --

Kraxk ARENA,

Petitioner,

—_—Vi—

~LUCKENBACH ‘STEAMSHIP Company, INc.,

Respond: nt,

| —V.—

AMERICAN STEVEDORING CORPORATION,

Responds nt.

—

é

PETITION FOR. WRIT OF CERTIQRARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

To the Honorable, the Chief Justice and the Associate

‘Justices of the Supreme Court of the United States:

Petitioner, Frank Arena, respectiully prays that a writ

. of certiorari issue to review the judgment of the United

States Court of Appeals for the First Circuit, made and

entered May 11, 1960 (Appendix D) affirming a judgment of

the United States Distriet Court, District of Massachusetts,

made and entered on October 25, 1959 (R. 109) after a

directed verdict for the Respondent at the close of Peti-

tioner’s case. °

-

Opinions Below

The opinion of the District Court (being a statement

to the jury why the Court granted Respondent's motion

for a directed verdict) does not appear, in the Official

Reporter; it is appended hereto and marked Appendix JA.

The opinion of the Court of Appeals for the Kjrst Circuit

is reported. in 279 F. 2d 186; it is appended hereto and

marked Appendix B. The opinion of the Court of Appeals

for the First Cireuit denying the petition for rehearing

at this time has not been reported: it is appended hereto

* and marked Appendix C.

_ ©

Jurisdiction

The judgment of the United States Court of Appeals for

the First Circuit sought to be reviewed was made and

entered May 11, 1960 (R. 116). On May 23, 1960 the man.

date was stayed until further order of the Court CR. 117).

On May 25, 1960 Petitioner, petitioned for rehearing (RL

119-121). On June 10, 1960 the United States Court of

Appeals for the First Cireuit in an opinion, denied the

petition for rehearing. .

The jurisdiction of the Court below was based on 2s

U.S.C. See. 1291. °

The jurisdiction of this Court to review by writ of

certiorari the judgment complained of, is conferred by 2s

U.S. C. Sees. 1254(1) and 2101(¢).

Questions Presented

In a longshoreman’s suit against a shipowner based on

unseaworthiness and negligence, for injuries sustained,

While doing the traditional work of a seaman, loading

v

®

cargo in the square of the hateh, when he was struck by

rolls of paper (ship's carge), whieh fell from a carge

board and its attachments (the-preperty of the stevedoring

contractor) on the mere tipping of the board, as it was

being brought aboard by means of the vessel's appliances

and the stevedore who was loaditg the ship, the following

questions are presented to this thonorable Court.

1 Where a stevedoring contractor employed to load a

vessel supplies a cargo board and the nets, attached to

the ends of the board are oi insuflicient length to secure

the rells of piaper, so that there is nothing to prevent them

from falling off the ends of the board, did the eng breach

its obligation of seaworthiness to the Petitioner

2. Assuming that the nets at the ends of the same cargo

board are of sufficient length to secure the refs of paper,

but are not tied by Petitioner's fellow longslioremen whe

nade up the draft of eargo, did the vessel breach its ob->

ligation of seaworthiness to the Petitioner?

: , ~ + pe ‘

3. Where the Trial Court refused te receive proof of,

the use and merits.of another type of cargo board, holding

the one supplied by the stevedore w hich failed, to be rea-

sonably fit, did not the Court deny the Petitioner the rischt

to a seavorthy appurtenance of the vessel!

4. Where the ship's officers knew or should have known

that’ the stevedore was bringing alefird tle rolls of pauper

unsecured to the cargo board, did - epee net breach

a duty of care owing to the Petitioner?

d. Dic not the District Court err in directing a verdict

for Respondent, for in-a loneshoreman's suit aiaifist a

shipowne , is net the “test of a jury case”, the same as

that prot ounced by this Court ina seanian’s case (Pe rguson

4.

v, Moore-McCormack Lines, Inc., 352 U.S. 521), "% * °

Whether the proofs justify with reason an inference that

* * @

* the negligence of the shipowner or the unseaworthi

ness of the vesse}) " * * * played any part even the slightest

in producing the injury or death for which damages are

sought’?

- There Are No Statutes luvolved

Statement of the Case

On April 1, 1957 the MATTIIEW LUCKENBACHE lay

docked at the Port of Boston and Respondent, Luckenbach,

owner and operator of the ship, employed American Steve-

doring Corporation, Respondent, to discharge and to load

cargo abaard the vessel (R. 23, 12, 61.. Appendix B19, 20.

24). Petitioner, a longshoreman in the employ of American

Stevedoring Corporation (R. 32), was working in one of the,

forward deep tanks in number 2 hatch illustrated in Plain

tiff’s Ex. 1 (R. 97, 44, 45, 68), loading cargo (R. 45, 48),

when he was struck by rolls of paper which fell out of a

draft of cargo coming aboard when the cargo board tipped ,

(R. 30, 46, 48, 70).

The ease was tried by a young, inexperieneed attorneys ;

the record shows he had difficulty eliciting the proof, that

he was restricted in offering proof by the Trial Cour

(R. 24-28, 43, 48, 57-60), and that he was not familiar witli

the law involved (R. 80-92). |

The sievedoring contractor, American Stevedoring Cor.

poration, supplied the cargo boards for transporting the

cargo from the dock to the ship CR. 42, 52, 53). The board

Which tipped was of the same design ahd construction as

the board indicated in Plaintiff's Ex. 2 (R. 99, 18). The

‘board was eight feet long and five ‘feet wide (R. 42, 67).

Attached to gach side of the board was a rope lanyard -

which was secured to the board by means of two shackles,

one located near each end CR. 47); the lanyard ropes

“necessarily extended from the two shackles in triangutar

fashion as they were joined by a ring bolt illustrated in

Plaintiffs Ex.2 (R. 99). The léngth of the lanvards was

not established. The ring bolt of each lanyard was secured

to the cargo hook, thus the ‘lanvards on each side of the

eargo board were the sole means of supporting the board

and its cargo. Plaintiff's lx. 2 (i. 99, 15,16). At each end

of the cargo board there was a rope net illustrated in Plain-

tiffs ex, 2 (R. 99), the length of the nets Was not estab-

lished. The purpose of the nets was to secure the cargo

to the board (R. 63, 69).

The board had a load of five rolls or packages of paper;

each Was about 212 feet in diameter, five feet long and

weighed about 500 pounds (R. 18, 19). There were three

separate rolls of paper in each package or roll and each of

them weighed about 180 pounds (R. 31, 82). Similar rolls

or packages though not completely intact because of dam-

age to the outer wrapping paper are shown in Plaintiff's

Mx. 4 (R. 108, 31); the same exhibit shows the three rolls

in each package; but the packages are on a paltet and not

a cargo hoard and they are in a vertical position rather

than the position in which they were loaded (R. 31, 32),

Then three packages or rolls rested on the cargo board so

that th® axis of each roll was at right angles to the sides

of the board; two rolls lay in the same manner on the top

of the bottom three (R. 67, 68, 7s). Obviously they would

het be loaded on the board in any other way.

The rolls of paper were loaded on the éargo board on

the dock by Petitioner's fellow longsloremen COR. 35, 59,

60). The load was brought aboard by means of the ship's

hooms a:d winch which controlled the movement of: the.

wire fall, leading to the eargo hook Which went into the

i

ring bolt in each lanyard on the cargo board (R. 13-16, 6s-

71). The winch controls are shown in Plaintiff's Ex. 3 (R.

101, 71). In the vicinity of the hatch coaming the cargo

board tipped up and the rolls fell off the board, some struck

the separator between the deep tanks breaking the package |

and Petitioner was struck by two of the rolls in the package

(R. 29, 30, 46, 69, 70, 77).

The shifting of the two top rolls caused the board to tip)

and spill the rolls (R. 69,70). There is no direct proof of the

cause of the shifting of the top rolls; it may have been

caused by a winch “a litfle faster than usual” (R. 71, 72), for

the load was swinging when it came aboard and it was

necessary for the winchinan to steady it twice before it

tipped up at the hatch coaming (R. 28, 29). When the board

tipped there was nothing to prevent at least the top two

rolls from falling out of the draft because the nets at each

end of the cargo board did not go over them (R, 69, 70).-

While the longshoreman on the dock who set up the draft

testified that the load was in “proper condition” with the

nets tied, he did not testify that the nets went over or se-

cured the two top rolls (R. 63). There is not a scintilla of

proof that the nets were sufficiently long to coyer or secure

the two top rolls. As thirty similar drafts came aboard

prior to the occurrence with the two top rolls uncovered

and unsecured by nets (R. 37, 38, 70), it is a fair inference

that the nets were too short to secure the two top rolls.

There was another type of cargo board with the lanyards

at the ends of the board and a raised curbing or cargo

stopper at each end of the board, illustrated in Plaintiff’

wEx. 6 (R. 107, 47). This the Court of Appeals referred to

as a “can” or “end” board and it referred to the board in

use With the lanyards on the sides as a “side” board (Ap-

pendix 13 20). It was the side board and not the end board:

which was used to discharge canned goods in addition to

rolls of. paper (R. 47, 75, 76). While there was some un-

certain proof that it was custemary to use the side board

for loading rolls of paper ©R. 46-48, 75, °76), the Trial

Court exeluded proof, that there also Was “a different set

of boards” for loading paper (R. 24, 25), thatythe end

hoard was or was not available (R. 43), that the end board

had been used for loading roll type paper (RL 48), that the

end board, was a safer and better appliance (R. 57-60).

Thus the availability, use, merits and construction of the

end beard, save for its patogremm, Plaintitf’s Ex. 6 (RR.

107) was excluded. .

The photograph of the end board shows that each end

had a stopper or curbing designed to prevent slippage of

cargo, particularly’ rolled cargo which moves freely, and

that the lanyards, which restrain the cargo as well as hold

‘the bourd (R. 48), were shackled to the ends of the board

rather than to the sides. As the draft of cargo Was brought

i“aburton”, so that the ends of the cargo board moved

across the ship at a right angle to her keel ‘or cout sr line,

the danger arose from the tipping of the ends of the*board.

the direetion of movement—for “a load swings as it rides”

(R. 22) and the danger of end tipping obviously increas: d

as the roils of paper lay on the board with their axis parallel

with the ends of the board and the direction of mover nt

(R. 67, 58, 78). .

The Court of Appeals upholding the use of the side bodrd,

said the lanyards prevented “longitudinal slippage” (Ap

“pendix B 21), that is the slippage from the sides of th:

‘board. As the two lanyard ropes on each side of the board

rose to form the apex of a triangle, it is obvious that the lan

yards could not prevent side slippage af each of the five rolls

because their ends were at the des of the board and the

lanvards could not press against all five ends. As the drat't

came m*aburton™ the danger was not from side slippage

of the cerge, but from énd slippage and the lanyards on

io 8)

the end board could prevent such slippage because the

sides of the rolls were parallel with the ends of the board,

so that it was only necessary for lanyards so placed to

press against the bottem and.top‘roll at each end of the

board, the center roll was held by the pressure of the

lanyards against the end rolls.

The ship had been loading paper since 8:00 o'clock the

morning of the accident (R. 13-15, 70), bringing aboard the

same size loads with the top two rolls unsecured and with

the same equipment (R. 55-57, 62, 69, 70). This took place

in the presence of the ship's officers and crew (R. 709).

The Court of Appeals concluded that the cargo board

was fit for the work, predicated its failure on the negligence:

of the longshoremen, and did not consider that Petitioner

was prevented from proving the use and merits of anothe'

board; while admitting that the shipowner might be liable

for the unseaworthiness of the bodrd, held that “improper

loading” was “not chargeable” to it and thus without con

sidering the matter, in effeet, held that it was not labl

for the unseaworthiness of the draft of cargo (Appendix 1

19-24). f

Reasons for Allowance of the Writ

ARGUMENT

_ Anwering the questions posed in numerical order.

1. As Petitioner was engaged in the traditional work ot

seamen loading cargo aboard Respondent's ship he had

the protection of the doctrine of scaworthiness, Seas Shs)

ping Co.v. Steracki, 328°U. 8. 85; United New York & Neu

Jerse Wy Sandy Hook Pilots «issn. V. Hal: chi, 305 ce S. 615.

The shipowner’s. hability for unseaworthiness extends te

equipment brought aboard by the stevedoring contractor

v

and used by, it in performing its serviee of Toading and

discharging cargo. Petterson v. Alaska S.S. Co. BAT ULS.

39; Rogers v. United States Lines, 847 ULS. O84. The cargo

board secured >to and operated by the ship's loading and

unloading equipment became a vital part of the ship's ap

paratus; like the wire cargo runner the stevedoring con

tractor brought aboard in Rogers v. United States Lines

(supra), Where this Court reversed the Court of Npypeals

for the Third Cireuit, 205 BF. 2d 57, it was incorporated in

the ship’s loading equipment and*became an appurtenance

of the ‘vessel to which the obligation of seaworthiness

attached.

The simple almost primitive cargo board was neers.

sarily traditional ship's equipment. While this Court: has

never stated that the warranty of seaworthines? extends

only to traditional ship's equipment brought aboard hy

the stevedoring contractor, it has been held that the war

ranty extends to non-traditional equipment, such as a truck

brought aboard by the stevedore, Considine ve Black Dia

mond Steamship Corporation (D. ©. D. Mass.). 163 F. Sapp.

é i : ae

/ 107, and a baggage chute kept on the dock, DéSalru vy.

Cunard S.S. Co. (D.C. 8. DLN. Y.), 171 F. Supp. S13, In

the interest of mechanical progress and efficieney it would

seem sufficient that the appliance is used in work tradition

ly performed by the ship and her crew.

The seaworthiness of the cargo board-and its attachments

is to be determined by its “retisonable fitness” for “in.

tended use”, Mitchell ve Trawler Racer, Tne. 36" U.S. 80S,

It is unlikely chat longshoremen would have had se little

regard for the safety of their fellow workers in the hold

that they would have left the nets untied on the load that

tipped and the thirty previous loads that came aboard the

morning of the accident (R. 37, 38, 10), if they could have

heemseenured. It is pertinent that experieneod conn-el for

ship did not establish the length of the nets. In the absence

10

of such proof the Court of Appeads (Appendix B 25, foot

note 4) says, “A photograph in evidence demonstrates them

to be approximately 5 feet.” Obviously such a conclusion i-

risky at best; as each roll was 2! feet in-diameter (R. Is,

19) and as the nets would have to be drawn upward from

the ends of the board at an angle, because the top two roll-

were in from the board ends, the nets would have to |

greater than five feet in length to secure the top two rolls.

The two top rolls being free to shift and fall with th.

movement of the draft, reasonable men might conclude that

the cargo board was unfit for its intended use and un

seaworthy.

* .

2. Assuming without conceding that fhe nets were sut

ficiently long to secure the top two rolls, but were’ not

tied through the negligence of the longshoremen, still the

draft was as unfit to,board the ship as one having no net-

at all. The stevedoring contractor can render a slip unsea

worthy not only by bringing aboard defective equipment as

in the Petterson and Rogers cases (supra) but by creating

an unfit condition with proper ship’s.equipment, Grilled v.

United States, 232 F. 2d 919 (2 C. C. AL); Rich ve. Eile rmin

278 KL 2d 704 (2. C. C2 AL). In Grillea the longshoreman re

covered even though it was his own carelessness in mi-

placing a hatch cover which later caused his injury. In

Rich it was held that improper stowage of ship's carge

by the longshoremen made the ship liable to them for un

seaworthiness. As liability arises without fault, and selel) .

by reason of an unfit condition created by the misuse «1

proper equipment by the longshoremeri, there is no reason

why liability should attach only when the shipowner pro

vides the equipment, for the stevedore’s equipment mia)

become.an appurtenance of the ship as well, L’efferson \

Alaska S.S. Co.: Rogers v. United States Lines (supra).

In holding that “improper loading” (Appendix B 23) and

“negligent use or negligent choice of equipment” (Ap

¢

1!

pendix & 2H) in bringing freight aboard does not render a

ship unseaworthy, the Court of Appeals below erred for it

failed to consider the draft of catgo an appurt nanes of

the ship, Which when suspended from the ship's beveorea Wats

probably the most potential hazard above the deck, eo?

tainly to the Petitiener and his fetlow workers in th.

hateh. As the hability for unseaworthiness was desiined to

protect against the hazards arising out of, work traditional! s

performed by séamen, Seas Shipping Co. vit Sieracks (su-

pra) it should’ attach to a draft of cargo even theugh it

be a transitory appurtenance, for it can ‘no longer be

urged * * * ° that liability for a temporary unseaworthy

condition is ditferent from the liability that attachos when

the condition is permanent.” Mitchell vo Trawler Racer,

Inc. (supra). oan oe

3. While the record is far from clear there was some

proof that it was customary to use the “side” board for

loading paper in the Port-of Buston CR. 25. 48, 57, 76, 79,

Sl). Customary use of an applianee does not establish its

reasonable fitness for the use to whichut is put. Mech? Co

Vv. Jacobse n, SOF. 2d 1 (CLA. D.C): Chic aga cd Ae. &.

Co. v. Bower, 2417. S. 470. For “What usually is- dem

may he evidence ot what ought to bie dene, but w liaat eruhit

to be done is fixed by a standard of reasonable prudence,

eae -

Whether it usually is complied with or not.”, Teans dh Pac.

Buoy. Bohymer. Us US. 468. So it is proper to show ‘lat

there is available in the industry another, a better o:

sifer appliance or method than the one claimed te be un

fit, echt Co. v. gs obsen isupray; The Tod Hooper, 60

B.2d 737 (2. C. AL). It is then for the jury to determine

which if any ap eae meets the standard of “reasonable,

fitness” for “intended use”,

‘Had th> Trial Court permitted Petitioner to prove th

use and merits of the end board (R. 24, 25, 45, 48, 57 60), a

act ,

e -

. : .

/

iz

jury may, reasonably have found that it met+the test of

reasonable fitness and the side board did not (supra 6-8). In

refusing to permit proof of the use and merits of another

type of cargo board (R. 08, ov), the Trial Court plac “d the

stamp of reasonable fitness on the cargo board the steve

dore supplied, even though its fitness was supported only

by its use and it finally failed. Thus the stevedore’s obli

gation to provide a reasonably fit appllance was virtually

abrogated and Petitioner's right to‘a seaworthy one denied.

Petitioner, a longshoreman, had the right to recover

for Respondent, Luckenbach’s negligence, Pope & Latbot,

Inc. vo Hawn, 346 U.S. 406. Surrender of control to the

stevedoring contractor does not immunize the shipowner for

its negligence, Palazzulo v. Pan Atlantic SS. Corp., 211

PS Sie 20. Ast ‘'rumady Vv. The Joachim H. Biss: r.

358 U.S. 423. The shipowner remains liable for his nest

gence all during the time the stevedore is in control, he ean

not stand by and knowingly permit the neglect of the

stevedoring contractor to injure its own-employees who are

lawfully abpgard his ship, Connolly ve Weuerhacuser S.S.

-Co., 236 F. 2d S48 (2 C. C. AL): Weyerhaeuser SwS. Co. s

Nacirema Operating Co., 305 U.S. 363.

As the testimony is undisputed that from the time th

work began on the morning of the accident until its ce

eurrence 30 similar unsecured loads came aboard (R.,

15, 76) and that during this time the ship's crew and <

cers Se iee the mates passed ‘by and “walk around all

the time” (R. 75), Respondent, Luckenbach, may reason

ably have found to be negligent by a jury.

5. In eases brought under the .Pederal Employers Lia-

bility Aci, Rogers v. Missouri, Po R. Co., 852 U.S. 900,

and the Jones Act, Ferguson v Moore-McCormack Lines,

Inc., 852 U.S. 021, this Court hae repeatedly held that when

w 13

negligence. played any. part even the slightest im

producing the injury or death * * * " that a jury issue is,

raised. While l6ngshoremen are not covered by either Act,

their cause of action against, the shipowner for negligence

arises out of the General Maritime Law, Pop: f Palbot,

Ine. v. Hawn (supra). It wouid be strange indeed if those

who are engaged in the traditional work .of seamen and

are subject to its traditional hazards are to be put to o

greater burden of a

Unseaworthiness too is a question of fact for jury. deter-

-mination, Cowan v. Inland Waterways Corp., 121 F. Supp.

683; Pope & Talbot, Inc. v. Hawn (supra), This Court

has never by direct pronouncement fixed the ‘standard of

proof required to impose liability for unseaworthiness. Xs

the doctrine of unseaworthiness is part of our maritime law |

which has received liberal interpretation from this Court

and-as the issues it raises are interwoven with concepts of

negligence under the General Maritime Law and the Jone-

Act, we believe’that a longshoreman has no greater burden

in proving unseaworthiness than a seaman has in proving

negligence under the Jones Act, Johnson v. United States,

333 U.S. 46.0 a.

*

On the facts heretofore presented and discussed the

negligence of Respondent, Luekenbach, and the nnscawor-

theness of its vessel should have been submitted to. the

jury.

14

CONCLUSION

In holding that a shipowner is not liable to a longshore

man for either negligence or unseaworthiness, where thy

stevedoring contractor has negligently loaded a draft o:

cargo or where it has selected its own unsafe appliance tc

‘make up the,draft, the Courts below have pronounced im

portant rules of maritime law contrary to the principl-

established by this Court-and other United States Courts o|

Appeal, and thus have impaired the rights of thousamt-

of longshoremen who load and unload vessels every day.

As making up and handling drafts of cargo is one of the

principal activities of longshoremen and the cargo draft i-

the most frequent cause of injury, the shipowner’s liability

with respect to it should be fixed by this Court.

The substantial amount of pending litigation brought bs

longshoremen_ against shipowners for negligence and un

seaworthiness calls for a pronouncement by this Court ot

the degree of proof required to establish such a case.

Certiorari should be granted as prayed for.

Respectfully submitted,

GeEorRGE J. Excenmas

Atte ney for Petitions

APPENDIX A

Opinion of the United States District Court,

District of Massachusetts

The Court: “Members of the Jury, this was a case in

which the plaintiff alleged that the defendaat here, Lucken-

bach Steamship Company, vas negligent—I shall try to

make as understandable as I can what I have to say to you-

towards the longshoremen. Then they alleged that--well,

there were several grounds upon which plaintiff said he

relies. He claimed a failure to furnish proper and suitable’

appliances. As | told vou during’ the trial, it was a duty

imposed upon the shipowner to furnish the workmen, the

longshoremen, with safe and suitable appliances ta do the

work on board that ship. If they knew or should have known

that the appliances here, principally this board we talked

about, the cargo board, was not suitable for the purpose

for which it was being emplostd, then of course if the plain-

e tiffs injuries were caused by their negligence he could

recover in this case. ° : '

Then on the unseaworthiness count, with respect to un-

seaworthiness the plaintiff does not have te prove negli-

xence but does have to prove that the shipowner failed to

have suitable appliances with which to work—the appliance

here or the instrumentality, as it is sometimes called, being

this cargo Board. But the difficulty in the plaimtetl’s case

is that -he failed to prove any negligence on the part of

the shipowner with respeet to the use of this board because,

as the evidence came in here, the board was used for vears,

that type of board was used for years by the steamship—

by the stevedores, and also the stevedore owned this beard

but it wes used by the shipowner, and that was the type

of board they used for years, and that was the manner in

Which the paper was (132) stowed of placed on the board

When it come into the ship.

. 16

, _«

So, in order to make that claim for unseaworthiness un-

derstandable to you, there was no evidence here to shew

that the board was defective in any way, no evidence here to

show that a rope broke in any avay, no evidence at all to

show any defective equipment in any way.

The mere fact that the board tilted and the rolls came

off might have been due to a great mary causes, other

causes that the shipowner would net be liable for. —

Let me illustrate that. These cases are a little comp!-

eated. We had acclaim by the plaintiff against the shipowner

for negligence. That claim was that the shipowner did not

lise reasonable care with respect to the appliances tires

furnished the plaintiff to work on. The unssaworthiness

count Was practically the same thing, except the duties in-

volved are a little different, that they failed to furnis! a

seaworthy, a safe andtitable beard for him to work on.

Well, when the suit was brought by Arena against Luck-

enbach, Luchenbach said, “Well, this material Was fur-

nished by the stevedore. They brought it on board. It was

the employees of American Stevedoring that were working

at the winch, loading it and unloading ‘it, in the hold.”

Now there was a duty upon the American ‘Stevedoring

Company to perform this work in a safe way. In order

to make it simple and understandable, Luckenbach said,

“If Tm stuck, if Lueckenbach is stuck, if a verdict comes

in, and we have to pay any damages because of this unsat

or unsuitable equipment, then we have a claim against th

stevedore because the stevedoring company promised te .

do this work in a safe way.”

Now | think you ought to Know this, that this is conjee-

ture on my part. How did this board tilt? We have no

“evidence in this case that would tell us why or how. Well,

we did have some evidence as to how it tipped. It tipped

forward. -We had no evidence as to why it tipped. Was it

in the winch? Well, the witness said he operated it in the-_

e 7

normal way. Was it hecause the load was tied inperfectly

when. it left the dock! Was it the result of the five rolls

that it was the custom to place on the cargo board, that _

they were improperty or insecurely placed on the cargo

board? ?

If the rolls were’ placed insecurely on the cargo board:

or improperly loaded on the dock to be swung into the

vessel, that negligence would be the negligence of the steve-

doring company and could not be charged up to the ship.

All that could be charged up against the ship-would be the

‘use of an improper appliance, ‘and I have talked about,

that. ;

Suppose there was some evidence, and I don't think there

was any, I don't remember any evidence that the load was.

unproperly tied on the board on the dock, or that it was

improperly placed.on top of the board, three on the bottom.

and two on top, but suppose there was eyidence with re-

spect to that, and it was the negligence of the “steve.

dores on the dock, or on the ship, that caused this accident.

‘The plaintiff could not recover against the stevedore for

any negligence towards him. Why?) Because the long-

‘shoreman is entitled to workmen's compensation for such

an injury as that and is barred from suing his employer,

the stevedore, In this case the plaintiff was paid Work-

men's Compensation for his injuries. It was stopped when

he brought, suit) in this case against Luckenbach, and

Luckenbach impleaded, as we call it, or brought in the

American Stevedoring Company. But the workman now

can go back and make his further claim against the Ameri-

can Stevedoring Company an@ have resumed: the compen-

sation he was being paid at the time he brought suit.

I thought I would tell you about that aspect of the case.

We do not have that mentioned when the case is being

teied becnuse the jury might think, “Well, he is getting paid

any way. We are not going to give hun any money.” In

—

L

my Court there is excluded evidence of the fact that he has

been paid and will be paid compensation for all of the

time he was laid up in aecordance with the Compensation

Act. : ge

So T daresay, although Tam not encouraging it, that the

American Stevedoring Corpordtion can expect this plain.

tiff to go back, te return and ask for further compensation

for the time after he stopped getting it, when the suit wa-

brought, np to the end of the disability.

Well, to sum the whole thing up, the plaintiff has failed +

prove that there was any negligence here on the part ot th

shipowner, and the plaintiff has failed to prove that th

Was anything the matter with this cargo board that had |)

used there for years, for five or six years, and the plains

cannot reeover against the shipowner. Consequently the eas’

against the Luckenbach Steamship Company falling, then of

course the claim of Luckenbach against American Steve-

doring Company falls withit, too” (R. 92-05). .

19

- APPENDIX B

UNTTED STATES COURT OF APPEALS

For tuk First Ciecir

No. 5601

netecisinnaloanatcerse

I’RaNK AKENA,

Plaintiff- Appellant,

—V—

LUCKENBACH SreaMsiup Company, Ixc., ef al,

De fendants-Appellees.

; p Bet AE

Appeal from the United States District Court for, the

District of Massachusetts.

‘ a

Before:

Woovpery, Chief Judqe, and

Harticas and Avpricn, Circuit Judges.

a

as

Grorce P. Doxovay, for apy lant.

Leo F. (GiLYNN, for Luckenbach Steamship (C'om-

pany, Tne. appellee.

soon hiiaeaaices = .

Opinion of the Court

May 11, 1960

ALEK H. Crreurt Judge: °

’ Thistt. an action brought by a longshoreman injured in

the part of Boston while engaged in loading a vessel owned

=U

by the defendant. The loading operations were in the sole

control of ao stevedoring company, plaintiff's emplover.

The plaintiff was injured when a loading board tipped and

spilled rolls of paper into the hold. The complaint alleges

negligence in the failure to supply a safe place to work and

in supplying defective loading equipment. It also alleges

unseaworthiness, again, the allegedly defective loading

equiptnent, At the close of plaintiff's ease the court di-

rected a verdict for the defendant. “The plaintiff appeals.

There was no conflict in the testimony. On the i hagpyi init

‘in question the. vessel was simultaneously loading and

unloading cargo, The plaintiff was at the bottem of one «ot

the number 2 hatch “tanks.” The hateh was serviced hy

two winches. The after winch was engaged in discharging

canned goods, and the forward one in doading rolls of

printing paper. The cargo in each instance was carried on

hoards. The boards for paper were 5’ wide and 8’ long.

suspended from two slings, or lanvards, fastened on the

sides at points somewhat im from the corners. The cart

boards were suspended front the ends. We will eall thes»

boards, for want of a better term, side-hoards and end-

boards, respectively. Although the record is not altogether

clear, apparently for as tong as any witness could remember

it was customary in the port of Boston to use side-board-

for loading rolls of paper of this type, and end-beard-

for various other purposes. There was no evidence of any

previous failure These particular rolls were about 2! 2

in diameter and ©’ long. Five rolls, as was ‘the usqal

custongy in the pertof Boston.” were placed upen a board

a layer of three, and on top of that. a layer of two. Net-

peernniganently attached toeach end of the board served, when

tied geross one to the other, to kegp the rolls from rolling

' This company was named as a third party defendant. bor d

het participate m the appeal amd ts net referred to in this of in

us a defendant

ee |

off. Longitudinal slippage of the rolls was contained by

the sling, or lanvards, from which the board was suspended

onl each side. ’

The loading epi porniesnt of the vessel consisted ofan fixed

derrick, or pole, from which two booms were suspended, one

stationed inshore, and the other “offshore,” over the hateh.

There was a wineh, with a separate control for each boom.

Movement of the eargo from shore to ship was ‘effected

by taking up on the offshore falls and slackening on the

inshore. The winch was eleetric, with three speeds each

way. Prior to the accident some thirty loads had Leen

brought aboard without incident. Three longshoremen who

were on deck at the time: testified about the one in ques-

tion. The first said that as the board’ came aboard. “it

looked like as af it was tipped a little.

The second said

it Was “swinggng a little.” According to this, witness, the

Winchthan “steadied the load on deck to takeethe swing

out of the load. When he had it steadied he started down

the hold again. [le steadied it again over the hatch and

then the load tipped up.” All of the rolls rolled out. There

Was noe evidence that any equipment failed, and no one

testified, hypotheticaily or otherwise, as to avhat caused

the upset.

The defendant having had nething to do with the loading

of the vessel, liability depends upon proof of defective or

improper equipment. Phe only testimony as to the winch

eatne from the third witness, the winchinan. He stated

that “it “Was beautiful.” Ele added that it ran “a little

faster than usaal.” When asked what he meant by this

fie said hie was referring to high speed only. [lt did not

characterize this speed as excessive, but repeated that the

wineh Wa. “beautiful” Even it this apeed could be thought

to be ad: feet, the witness was notvasked, and there was no

>No Witaess was called who had londed the board. or who had

~

een 1 bel ig loaded

testimony from whieh it could be gathered, what speed

cor speeds the winch had been operated in with respect. to

this particular load. For all that appears, high speed was

used only when the board was lizht. Nor was there any .

suggestion that it was unusual for a loud to swing a little

or tip a little, or that the rate of speed, in high or other-

wise, had been the cause of such movement. Although the

burden upon a longshoreman to establish causation is not

lreavy, there must be some evidence that whatever might

he claimed to be a defect in the vessel liad some ‘connection

with the occurrence. The defendant, on this reeord, could

not be charged simply because high speed on this winch

Was faster Gian on some others. -

The plaintiff bases his attaék principally apon the board.’

There wa& no evidence that? this particular board was

damaged or defective. Nor were its lanyards or nets. The

hoard, with its appurtenances, continued te be used for

furtwer loading. Apparently, not even any net lines had

heen injured, Although no witness testified direetly what

caused the accident to occur, we believe it can be deduced.

When the winehman was asked whether he observed any-

thing about the load as it was coming in, he Stated, “This

was one thing I noticed. The net. They had three bales on

the bottem and two on the top... Fhis net here had three

rolls on the bottom; for two nothing was on them, to hold

them... and these two bales on top they shifted on me .

The. board went up straight and down like that.” In other

words, with no fastening over the tep rolls, and, the net.

partly filling the spaces between the bottom rolls which

would normally help retain them, the top rolls were free te

shift, which. would-further unbalance the board, and ‘e- .

‘Boards are stevedore’s property. We assume, without deciding,

that the obligation of seaworthiness applies to equipment such as

this, if used for performing a regular ship's funetion, even though

hot customarily ship's property. Cf. Considine vo Black Diamond

S.S. Ctrp., D-C.D.Mass..° (1958), 163 F.Supp. 107.

oad

ant >

centuate the movement with the eventual result. In view

of the fact that even the bottera laver of rolls came out

and the nets were not found to be injured after the accident,

it may well be that the nets had not been tied at all, but

were simply held over the bottom rolls by the weight of.

the top ones. until their shifting released the tension. In

any event, the tmproper loading was not chargeable to the

defendant... . ,

The plaintiff's contention, which is purely eounsel’s sug-

gestion, as no witness so testified, is that so-called end-

boards would have prevented this accident, and that the

vessel was accordingly unseaworthy., There are two an-

swers to this. In the first place, if the lanyards had been

at the ends instead of at the sides of the board, fhere would

have been no protegtion against end-wise slipping of the”

rolls. The mets were there to guard against roll-offs, The

board was not defective simply because the longshoremen,

Who loaded it neglected to do so in the proper fashian.

Secondly, even if at could be found that end:hoards. rather

tian side-bourds should have been used, the choice of side-.

boards was the stevedore’s, There was no evidence of

unavailability of end-boards. If anything, the reeard, sug-

gests the contrary, AU vessel is not unseaworthy simply

because the Hnproper type ot equipment Was used hy <ome-

one unless, also, it appears that the proper type was un-

available, In the jee ereain case, of which plaintiff makes

inuch, the water's use of a knife was fereed apon him by

‘In his brief plaintiff states that the nets were only 2 feet long.

There ts no testimony from anyone as to the length of the nets. A

photograph in evidence demonstrates them to be approximately 5

feet long. even when not stretched taut. We'eould not say that they

could not oo to the top of the top layer. There was no direct testi.

mouy that they could. ger could ner but the facet that the wincehman

spoke of notieing that the nets were only over the bottom) rolls and

that the top rolls Were free indicates that this was not cugtomary.

e

~+

the absence of the proper tar. Ferguson v. Moore-MeCor-

mack Lines, 1956, 352 U.S. 522.

Before concluding, we Sisk to speak of the pleadings.

Except for an admission that the defendant was a foreign

corporation doing business in Massachusetts, and an allega-

tion of lack of knowledge as to the citizenship of the plain

tiff, the defendant’ s answer denied eve ry allegation in the

complaint. FL R.C. PL 11 provides in part, “The signature

of an attorney constitutes a certificate by him that he ha-

read the pleading; [and] that to the best of his knowledge — >

and belief tere is good ground to support it... . For a

willful violation of this rut an attorney may be subjected. :

to an appropriate disciplinary action.” Ut is diflicult to

believe that counsel who signed this answer thad good”

grounds to assert, among other things, that his client did

not either own, operate or manage the vessel, that th:

plaintilf was not employed by the stevedore, and-that fn

was not injured, or even aboard the vessel. Jt is a breach

of counsel's obligation fo the court to file am answer erent

ing issues that counsel does net affirmatively believe have

a basis. | 3

Jridqment will enter affirming the judqment of the Dis.

trict Court.

APPENDIX C

UNITED STATES COURT OF APPEALS

; Fok tug First Cirevrr

No? 5601

>

-

FRANK ARENA,

: ; . Plaintiff-Appellant, .

—_—vV—

_ Luckexsacn Sreamsuir Company, Inc., ef al.,

Li fendants-Appellees.

,..

ir

Appeal from the United States District Court for the

District of Massachusetts.

a.

a

Before:

Woopsury, Chics Judge. and

Hartigan and ALpricn, Corcuit Judges. :

Ae iecepcnicnenllN casencigassota

Crorck P. Doxovas, for appellant.

Leo F. Guyxs, for Luckenbach Steamship. Com-

pany, lne., appellee,

ee

Opinion of the Cofrt

On Petition for Rehearing

June 10, 1960

Aupricny, Circuit Judge:

Plaintiff has filed a petition for rehearing, citing the.—

‘ “Case of Rich v. Ellerman & Bucknall S.S. C'u., Lid., decided

.

6

by the Court of Appeals for the Second Circuit a day after

the instant case, —— F. 2d ——. In Rich, the stevedores

loading the ship left some,of the stow a “dangerous working

platform” in the hold, whieh gave way when the plaintiff

longshoreman stepped on it. The decision that a portion

of the ship may be made unseaworthy by an act of a steve.

dore presents no novel principle. It is quite another step

to say, as plaintiff does, that because a stevedore may have

made negligent use, or negligent choice,* of equipment an

which it is bringing freight aboard, fhe ship becomes un-

seaworthy. The possible transitory nature‘of a condition

of unseaworthiness has been accented sinee our opinion

herein. Mitchell v. Trawler Racer, Inc., May 16, 1960, ——

U.S. -—. But we do not believe that wunseaworthiness is

to be equated with mere negligent conduct. If a winehman

employed by a stevedore negligentl*¥ lowered a boom onto

a longshoreman, it would be true, in a sense that the Jon:

shoreman had not been working in a safe place. But absent

a showing that the winchman. was: an unfit individual we

could not say that the vessel was unseaworthy,.

The petition for rehearing is denied:

* While we held that the jury might have found that the rolls

were inadequately made fast to the beard, the statement. in cur

opinion about negligent choice of a wrong type of board was

cumulatise, only, Our primary holding as to that aspect of th:

case Was that there was no evidence warranting a finding that it

Was the wrong type of board. ay

“I

APPENDIX D

JUDGMENT

May 11, 1960

This cause came on to be heard on appeal from the Urited

States District Court for the District of Massachusetts, anid

was argued by counsel. Ae)

. 4

Upon consideration whereof, it is now here ordered.

adjudged and deerced as follows: The Judgment of th

District Court is affirmed.

By the Court:

/s/ Rocer A. STincuriesi

Clerk = 2

Approved: ,

/3/ Peter WoopBuRY

Chil.