Cross Petition for Writ of Certiorari — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

UNICO Dupe WeErd, Weer

“FILED

‘DEC 7 1960

ape Gourt of the Suited States -

OcroBER ‘Tenm, 1960

. | i | ne 5 69

‘UNITED NEW YORK AND NEW JERSEY SANDY .

HOOK PILOTS ASSOCIATION, a corporation and

UNITED NEW YORK SANDY HOOK PILOTS AS-

SOCIATION, a corporation, ’ 7

ot ere) _ Petitioners and

-‘Cross-Respondent,.

‘—against— |

ANNA HALECKI, Administratrix: wl intial of

the. Estate of Waurer JosepH Haxecki, deceased, and

ANNA HALECKI, Administratrix of the Estate of

Water JosEPH Hateckt, deceased,

* a a Respondent and

Cross-Petitioners. -

‘

‘CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Natuan. Baker, ¢.

(Baxer, Garper & CHazen),

Counsel for Cross-Petitioners,

1 Newark Street,

| Hoboken, New Jersey.

ay CHAzZEN, _—_ ; wy ne

GaRBER, .

On the Brief. eos

Adams Press Corp., 11 Commerce Street, Newark, N. J.—-Market 3-8611-12

TABLE OF CONTENTS

OPIN TONS ef tip, Coen i Bi teow. . neon” . -

x

SV kinba vie 2.2%... eens cna ?

Ocrstions Puestntnp o..22..... Tat Mek

DOATENENT OF PACINO oo oss ahs Pee 5

‘Reasons ror Gyan tine Wis yeh mses eC eS tae

CONCLUSIONS ©. 2 ee ee eee Sree

Bondy v. Harvey, 62 Pod 2b eo Cir. Mia). eert..

den. 2S EL SO 74 Oo SL et, ot oe LL. Ral. I4s.

(135)

Lawlor veo Seen \ coetarirey i) ta a fc See

Cir. 160), cs SS. PHD. OD Eel.

ML ATES CIMINO). aut Svepeerer ee fe |

State Tan ¢ eoppatniinsieont oof | teabi v. Vai Cott, SMe ls

oi: SSL 1. GT LBA. Ges ert), aly he iB

IN THE : S

. Supreme Cuurt uf the United Ptates

— October TERM, 160

No.

-

*

.

Usitep New York axp New Jerseys Saxpy Hoox* Pivors |

Association, a corporation and Usiren New Yor: Saxpy

Hook Pitots AssociaTion, a corporation,

_ Petitioners and

. ‘ C'ross-Respondent,

—against— iy

Anna Harecki, Administratrix: ad Prosequendum of the

Estate of Walter Joseph Halecki, deceased, and Anna

Halecki, Administratrix of the Estate, of Walter Joseph

-Halecki, deceased, .

; Respondent and .

Cross-Petitioners.

o> =

-CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

. FOR THE SECOND CIRCUIT

Td the Honorable the Chief Justice of tlie Cnited States

and the Associate Justices of the Supreme Court of the

United States:

Cross-petitioners ._pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Second Cireuit entered in the aboye entitled action

on July 22, 1960.

>

7

:

’ Opinions of the Court Below 3

The opinion of ‘the United States Court of Appeal. for

the Second Circuit-in the first appeal following.a verdict for

plaintiff is reported at 251 F. 2d TOS (1959). The opinion of

the United States Supreme Court reversing and reams z

ings i 1s, reported at: eS U.S. 613, 79 S. Cr. 505,83 L. ed. t a !

(1959).

the defendant, a second appeal was taken to the, Unite:

States Court of Appeals for the Second Cireyjt, whiely re-

versed and remanded in an-opinion reported at 282 FL 2

137 (1960). he judgnient of the Uiiited States Court of

-Appeals‘is also set forth in the appendix to the Petition of

the defendant.

Jurisdiction

The jurisdiction of the Distriet Court was invoked be:

cause, of diversity of citizenship, the plaintiff being a eit)

ewe zen of New Jerse v “and the defendant a New York cor pore

tion. ; ' a

The Soeeabek of the United States ee of Appeals for

the Second Cirenit was entered on July 22, 1960. Petition

> for Re-hearing and Petition for Hearing En Bare were ce.

nied on October 3. 1960. The defendant has filed its pet!

tion for ceftiorari on November 28, 1960.

The jurisdiction of this Court ts ‘ealed under Tit! oh

U. Sa me Section 1254 (1). e

Questions — ,

Whether or not, in view of the new, undisputed evidence:

produced at the retrial of the aetion to the & ‘feet that th

work performed by, the deceased had been traditionally

formed by seamen, he was entitled to d seaworthy verse!

a matter of law? © :

Following a second trial and a jury verdict in faver“ot

.

betes ete

eis

ee

Whether or not, Where the only ground for reversal on

. the first wes of this vetion was subsequent hy proved*to be

erroncous gaa matter of law, the original verdiet should

not be reiistatel? © |

<

Statement of Facts n

This action had originally heen tried before the Honor-.

able Epwarp WerinxreLp and a jury and resulted in a verdict

of $65,000 (la). On appeal_to the Uniteil States Court. of

Appeals for the Second Cireuit the judgment was affirmed

with a disse nting opinion by Chief Judge Lomparp. Judge

LearNep Hanxp writing for the majority interpreted the .

New Jérsey Wrongful Death Actoas applied in a ease in- ,

volvi ing death on the navigable waters of the United States

and held that the decessed had a right to a seaworthy ves-

sel and. that. in addition the defendants had a duty under

the facts in the ease to provide a reasonably sate place to

work and had a duty to exercise reasonable care to aseer-

tain the methods and: manner in which certain work with a

dangerous subsiance was being carried on during the pe-

riod of the work, (6a): In addition, the Court held that the

doctrine of eoifiparative ne tligence appiied (1a, Ta).

Judge Losparo dissented, stating that in his opinion the

deceased was not entitled toa seaworthy vessel because ‘he

was not doing what any crew member hal ever done on

this ship. or anywhere else in the werl| so far as we are in

formed’? (16a). Judge Lowaynn alse dissented from the

view that comparative negligence cather than contributory -

negligence Would apply (1S... Hoy, ever, he agreed that a

cause of Action based on negligence existed and would have

remanded for trial on that issue only (lai. The United

States Supreme Court granted certioari atid in aot eleei-

sion reversed amd remanded. Mr. Justice Stew rt, writing

for the majority cited the aboye quoted language in the dis-

senting opinion of Judge Lowpanp (24a)cand held that the

Warranty of st aworthine ss would not have applied in an

a

é

3 —

4

action by the deceased in thig accident if he‘ had not silied

(24a)... On the issue of neghgence, Mr. Justice Srewarr

‘

stated ‘‘we agree with the Court of Appeals that the ye

dence created an issue that-ecould be decided only by a ver.

dict. The defendants owed a duty of exercising: reasonable,

care for the safety of the decedent’? (25a). Furthermor:,

the majority upheld the determination of the Court’of Ap-

peals that comparative negligence rather than contributory

negligence was the test (2la). The judgment was vacated

and the case remanded for a new trial (25a).

° 4 - * J

At the retrial, the following was established by the evi-

dence : ‘

On September 29; 1951, a vessel known as the ** New Jer:

sey’’ was tied up in. the nayigable waters of the United

States at Jersey City, New Jersey (134a, 135a, 148a). Th

vessel was owned and operated by the defendant (15%a).

The vessel was brought to this location by its own crew -

where an enterprise knawn as Rodermond Industries wa-

located -(134a). The master of the vessel testified that.

while the vessel was moored, he was ‘ton board every day

during working hours’? (136a).. Working on board during

this period were the master, some deck men and the full

complemeitt of engineers and engine room erew (12Sa‘.

The deck men had ‘‘a certain’amount of deck work to do.

like painting and fixing up minor repairs a general over:

haul of the deck department, retiew lines,’ ete. (137a). The

engineess and engine room crew.took care of ‘*giaintain-

ing the engines and any other specifie work’* they had to

‘take care of (138a). During the working week, and on some

weekends, at vleast one engineer slept on board the vessel

(139a). The master would remain on board at night ‘*1we

or three nights a week”? (159a). The vessel also maintained

a deck wateh (140a). In addition, Mr. Goetz, the defend

ant’s marine superintendent, would go ‘“arqund the vers!

to see thaf the different’ jobs were being done,’* (140a)..

{

’ \

The work dove Was described. as ‘fannual overhaul”?

(145a). The’ master testified (14> ae pats

<“. To your knowledge was it done sill’ any or-

ders of any ‘members of. the Pilot Association? 24, Un-

der the orders of the marine saperintendent.

Q. When you say under the orders‘ of the marine .

superintendent, you Mean in accor: lance svith the speci-

fications? A. -That’s correct.’

The pertinent part of the specifications prov ides’ that the

crew Was to remave and, re eo evlinder heads for the port

and starboard: genefators (212a). However, the ‘coatrae-

tor, among other things, ey 0 (212a):

“Spray clean with carbon tetrachlor aie the armature -

and field windings to remove all traces of dirt and film.

Close up and prove in good order.” ed 3

Donald Doidge, who was the formman for K & S Blectri-’

“eal Company, gave orders to the deceased who assisted. him

(46a, 78a). Mr. Doidge testified that he, the decedent, and

two other men, had worked on‘the vessel during the week

before ‘on ‘‘geneval repairs, renewing, cable, working

around different controls"’ (40a). During this period, the

ship’ s crew also worked on the vessel (4ia). He testified

that he and the chief engineer ‘on the vessel went over the

. specifications to determinéWhich ‘was the best time to co

the spray cJeaning (48a). The chief engineer suggeste

that the work be done on a Saturday W then there ‘would vot:

be any other work done on the vessel (49a). This was sug-

gested beeause of the dangerous nature of carbon tetra-

chloride, a fact known to the chief enyineer (49a), Among

other things, Mr. Doidge, testified (s0a) :

i OO As T say, if it is onboard the ship we have to

~~ consult the chief engineer. Tn other words, he is re-

sponeible when the job is done, we hiive to. set it

checked with the chief engineer and get it okwyved he-

‘

.

fore he will sign for the completion of the work, So

“we have to consult with: the chief engineer all the

time.’’ '

The witness testified that Rodermond Industries didn't

have anyone qualified to check on the elegtrieal work ant

that-it was all-up to the. chief engineer of the ‘vesse! whi

was ‘‘aequainted with the electrical work’? (71a). He wiis

asked. on cross examination (7da):

¢ “Q. Did the chief engineer have anything to do with

the manner in which you performed your work?! \.

Well, literally speaking, ves, for the simple reveon le

- is the boss and if he sees: anything that is wrens he

would tell you about it. ng 7

Q. If your work was done contrary to the spovitica.

tions or if it didn’t meet with his satisfaction he could

‘tell you to — it) is that right? -AGThat’s rivht.

yes, 99

Mr. Doidge Jalso testified (64a): 5

©

“*Q. If it didn’t specify here carbon tetrachloride

would vou have used carbon tetrachloride or a substi-

ite? A. Do you mean if it wasn't in the specifica

tions? T think we would go to the substitate. o }

Q. Why is that?) A.. For the simple reason it is

safer ‘to work With and not aSmuch danger to it.

_Q. Then can you tell us the reason why vou used!

carbor tetrachloride on the particular job?) Avo Be.

cause it is specified i in the Specific: ations. ae

On redirect this. witifess also testified (39a)

mQ. With respect to see that the vessel is properly - 7

‘ventilated for the work that ‘you had to doewho was

that vip to? A. That is hard to save If the enginesr

«was on board the ship, it would be‘up to him. Bu’ in

this case I was there on Saturday by myself, so the af

was nobody to consult, s6 I do it on my own: j

4 .

~)

*

Q. But if the en; zinecr was there to consult with

you, it would be up to the chief engineer to see that it

, is properly ventilated! A. Me was the boss on the ship,

; yes. ”

Donald Doidge, the foreman of the de vemiagedd, test! ified

concerning the cireumstanees under. which, “the deevased

worked just prior to his injury and déath. On the day be-

fore the aecident both Doidge and the deceased had ob-

tained air hoses and an exhaust blower from the storergom-

of Roderniond Industries (50a). The blower and air hoses

were brought on board the vessel the day before, on a Fri-

day (50a). The chief engineer was on board -while this was

being done (50a)., The next day no one was on board ex-°

» cept the man on watch and Doidge and the deccased (doa).

They starte? about 8 o'clock in the moraing. First of all,

Doidge started the generator on shore ** That energizes, the

ship switehboard’’ (53a). Then they rigged the air hoses

(4a). They started working with the carbon tb trachlor ide

“spray at about’ 8:30 A.M. and finished at about 3:30 P. sap

with half an hour out for lunch (- Mia).

The spraying took ‘about six ‘hours. (Ta). Doidge had y

“burt his hand the day before, so that the deceased did all.

‘the spraying himself with some help trom Doidge (ova),

After the work was finished, the deceased left! complain-

ing of a ‘*peculiar taste in his mouth’? (62a). The de-

ceased passed away a few days later. Dr. Grassi who per-

formed an autopsy stated that the deceased died of ‘eur.

bon tetrachloride peisoning’’ (105a). An engineering ex. -

pert, Gerald J. Horvitz who has been connected with- New

_ York Testing Laboratorips for 40 years, and-is also aegrad-

«uate chemical engineer testified (110a).. He had physically

éxamined the engine foom of the defendant's vessel (12a).

‘Tle testified that carbon tetrachloride is 5.3 times heavier

“than air (115a). fle stated:that it was a dangerous chemi-

eal when taken into the system by humans (Floaj. He said

that ‘this was common knowledge in industry in 1997 (1152).

?

The maximum allowable concentration has been set at 169

parts per million (115a). He computed that $ gallons of:

carbon tetrachloride used in the contined spaces of the en

gine room in six hours would produce 12,000 parts per mil-

lion (117a). He stated that a chemist could have computed

in advance how much ventilation was required (117a, 127a:.

He estimated on the basis of a hypothetical question that

the ship’s equipment together with: the other equipment

used would reduce the petite Naorod approximately 20.

In his opinion the ventilation was inadequate (120a). The

"concentration #as unsafe and was about 96 times the allow.

able safe concentration (123a). He staged that the type of

gas mask used would not be effeetive for more than half :

hour (125a). There were safer substitutes available as

cleaning agents in 1951 (125a). He also stated -thatethe

~ usual procedure if a vessel goes to the shipyard js tliat the

‘owner specifies in his contract that a chemist’s report be

“made up of the inspection of the vessel with regards to <afe

» working conditions (127a, 128a).

The court below ruled prior to the start of the ease th: "

the plaintiff could produce ‘‘additional facets’? on the State

. of the deceased but that if the facts produeed were the

same as at the first trial he would exclude the issue of Te

_seaworthiness as a matter of Jaw (35a). ,

‘The plaintiff produced Stanley Tenusiak,-a chief «

neer working on tugboats for the Pennsylvania Sudtindn L

He started .going to sea in 1933 at the age of 15 (14a.

105a).. He had not testified at the first trial. He was li-

eénsed as a chief engineer of steam and motor vessels of

any horsepower with endorsements .as electrician, water

tender,. fireman and oiler (104a)y. Me sailed: on tanker.

freighters, passenger ships and tugboats (105a).. He stated

. that he was qualified to clean generators and that they do

this on the railroad vessels weekly (17a). He said'that at

one time they did use carbon’ tetrachloride to clean genera-

. @

tors but discontinued using it in 1946 (107a, 10Sa). He

stated specilically that. cleaning generators was and is a’

seaman’s job (108a), and that the work of overhaui is done

sometimes by. the ship's crew and sometimes by the ship-

yard (11Va)..

The ‘defendant made’a motion to dismiss at tle end of

‘the plaintiff's case which was denied (149a). The court

also ruled that the additional evidence of Mr. Tennsiak

didn*t make any difference,and therefore the issue of un-

seaworthiness was out of the vase (150a). The court also.

denied motions made at the end of the case (166a, 171la).

Py trial court refused to use the language of the Court:

f Appeals or of this court in charging the standards to

be applied in determining negligence (167a, 168a, 170a,°

202a, 208a). The trial court charged that ‘‘control’’ of

the work done by the deceased was essential to a finding

~ that the shipowner diad any duty toward: the deceased

(178a, see also 177a, 179a, 180a, 201a, 204a). - The trial

court -also commented, **Tlowever, the evidence is undis-

puted that they did not supervise the work’? (178a). The

verdict-Tor defendant which resulted was reversed by the

Couft of Appeals. The court agreed with plaintiff's con-

tention that the charge of the trial court was ‘*fantamount

to the direction of a defendant's verdiet’’ (Pet. 27). On

this ground the judgment was reversed and the case re-

manded, However, the court did not find error in the

refusal to send the question of unseaworthiness to the jury

and therefore did not pass on plaintiff's contention that the

linet jury verdict%hould have been reinstated.

Reasons for Granting of Writ

«1. Fhe shipowner Tras filed his petition in this ease seek-

ing sw writ of certiorari, The plaintiff contends that the

‘questions <¢t forth in the petition of the shipewner are

not ef such impoertanée as to Warrant the granting of the

writ since they cover matters aiready decided by this court.

x.

10 .

We therefore oppose granting of the shipow ner’ s petition.

‘However, we wish to present for decision eabavians aud

novel questions of law which: were decided adversely to

plaintiff by the United States Court of .Appeals.

2. This court in the majority opinion in prior. decision

rendered in this case held (24a) :

?

ces * The basic fact as, in the apt words of Judge

Lombard’s dissenting opinion in the Court of Appeals,

thaf the decedent was, not doing what any ‘crew mem-

bers had ever done on this ship or anywhere else in the

world so far as we are inforined! * * * (Italies ours)

At the retrial of this matter the plaintiff proved by un-

disputed evidence that this was work traditionally done by

seamen as a matter of fact. A witness who had been going

tc sea since’ 1933, was a licensed chief engineer, and had

served on all types of vessels testified that prior to 146

or 1947, he and other seamen had cleaned generators with

carbon tetrachlorid® on vessels as part of their duties and

that they. still clean generators on vessels (106a ef seq.).

The trial court stated’ that the new evidence did not change

‘the essentials of this issue and consequently, refused to

submit the unseaworthiness issue to the jury (150a, 197a).

In view of the new undisputed evidence, which estab-

lished factually that the cleaning of ‘ship’ s generators, in-

cluding cleaning with carbon tetrachloride, was work tra-

ditionally done by seaman, the prior decision of this court,

which stated that the deceased was not entitled to a sea-

worthy vessel was not controlling and should not have been

followed. See De Pareq v. Liggett & myers Tobacco Co.

S1 F. 777 (8 Cir. 1936) cert. den. 298 U.S. 689, 56

S. Ct. 947, ‘SO L. Ed. 1400 (1936); oe V. Harvey. 6 F.

21 521 yr Cir. 1933) cert. den. 289 UL S. 740, 53 S.Ct. 659,

77 OL. Ed. 1487 (1935). In the majority opinion, this eourt

had left open “the question of whether the status of the

vessel was such as would deprive: the deceased of a right

11

toa seaworthy vessel (24a, ftn. 7). This question has been

answered in favor of those in the position of the decedent

‘in Lawior y. Socony-Vaéuum Oil Co, 275 BF. 2d 599 (2 Cir.

1960), —— U. &.

(1960). The issue of whether a shore-based worker: is

entitled to a seaworthy, vessel where *the ‘evidence, estab-

lishes factually that he ‘is doing, work traditionally per-

formed -by seamen ts an important question which deserves

constderation by this court.

*»

this court in the majority opinion was error in submitting

the issue of unseaworthiness to the jury (25a). The matter

was determined as a question of law. At the retrial, on

the basis of undisputed evidence it was established that the °

deceased was doing work traditionally done” by seamen.

He would have been ‘entitled to a seaworthy vessel. There-

fore, the alleged error in the first’ trial turns ont to have

heen based on an error of law based on an error of faet

Which was subsequently corrected. The defendant has hitd

a fair trial already on all issues. What would be the pur-

pose of a further trial?) The jury verdict in the first trial

should be reinstated since it represents an adjudication on

all issues properly involved in this action. In view of the

new fact established in this case, this court should exercise

ity, powers to dispose of this case as jiistice may require

and reiastate the original verdiet for plaintiff. Cf. State

Tar Commission of Utah vo Van Cott, 306 U.S. A110 515,

SYS. Ct, 605, STL. Ed. Gos (1939), ‘

, SUS. Ct. 1614, 4 Lo Ed. 2d 1728 |

3.. The only ground for reversal in the prior decision of |

ee

12

CONCLUSION

* Awrit of eertiovert should be granted in accordance with :

the prayer of this: cross-petition.

Dated: . December 6, 196).

Respectfully submitted,

NaTuan Baker,

(Baker, Garper & CHazenx),

Counsel for Cross-Petitioners.

Bernarp CHAZEN, 4 a)

t+ °“MiLton Garser,

On the Brief:

iAN P| 4 ty!

f JAM SP PR owtUNG Chath

IN Lt

“Supreme Court of the United States

October. Term, 1960

| | - Me. | Bey

wa .* a . ' , ‘

Cxtin Naw Youwowsn Now .@eosry Sasi Toes Pirots

Asan IAT OON, Ga SL readied) ctli Let . AY \ Youn SANDY

1] rb Pie | Ass OA We ikiteell

Petites aid Cross Respondent.

asriaigist

ANwNa Hantons Nelonisttatrin od) Proscamendiunn of the

Restate of Walter Poses ti bi eaesecd, ated ANNA

Alarrcna. Aedtainistratrin of the od toa Wate Posern

; ~

PP ate way heceiasedd, , a

, t / e.g ;? yf eee *

BRIEF IN OPPOSITION TO CROSS PETITION

FOR WRIT OF CERTIORARI ~ |

*

— Hook Pivots AssocrartoS/a corporation,

IN THE

Reinei Court of the United States

October Term, 1960

No.

>- —s

Usxirep New York anne. New Jenusty Saxpy Hook Prirots

Association, a corporation and Usxrren New York Sanpy

al

Petjtioners ond Cross-Respondent.

me) a

—againsi—

Asya Hareckt,” \dministratrix’ ad Prosequendum of the

Estate of Walter Joseph Halecki, deceased, and Anna

Haveckt, Administratrix, of’ the Estate of WaLTeR JaserH

HaLecki, deeveased, a

Respondent and Cross-Petitioners,

BRIEF IN OPPOSITION TO CROSS PETITION

FOR WRIT OF CERTIORARI :

Counter Statement of Questions Presented

Whether a question which was decided with finality by

the Supreme Court of the United States can be. re-opened

by thi: introduc tion of alleged new evidence, when the same

facts were before the Court upou the first appeal!

Whether the oreasional pe rformance of a particular job

by seamen can be a basis’ for finding that the’ work was

“traditionally or customarily’* done by seamen?

ad »

af

v ARGUMENT

When this case was first before the United States Su-

preme. Court, a decision in favor of the plaintiff was re-

versed, and a new trial was specifically ordered to be on

the sole issue of negligence. In a majority opinion by Mr.

‘Justice Stewart, 358 U.S. 613, it was held that Halecki did

—not-dothe type of work traditionally done by the ship’s

crew, and ‘that he ‘was not éntitled to the w arranty of sea-

worthiness.

In spite of. this ruling, the plaintiff’s attorneys attempted

to bring this element back into‘the case at the second trial,

through the testimony of Stanley Tenusiak, an’ alleged ex-

pert witness on behalf of the plaintiff. Mr. Tenusiak’s tes-

~ timony (p. 104A-109A), was ostensibly introduced to demon-

strate the proper use of carbon tetrachloride. However,.

this witness attempted to testify that fhis typeof work, had,

in his experience, been done by seamen..

When the nature of this. testimony became apparent an

objection Was made, and the Trial’ Court ruled that the .:"

testimony was irrelevant because the i issue of unseaw orthi-

ness had been removed from the case by the United States

Supreme Court. This issue was again raised’ by the plain- ..

tiff as an appellant before the United’ States Court of

Appeals for the Second Cireuit which rejeeted the attempt _

to resurrect the issye of _unseaworthiness: as follows, 282

F.:2d 137 (page 139) :

¢*Plaintiff on the retrial attempted to fortify her

position to the effect that the work done by the de-

ceased was traditionally performed by seamen. The .

trial court, however,’ ruled that the essential facts

were the same as on the first trial and, relying on the

Supreme Court's rejection of the warranty of sea-

worthiness contention, refused to send this question --

to the jury. With this decision we agree. The ease

Was thus submitted solely on the negligence count.”

~The plain iff respondeut by | means of a cross petition for

a Writ of Ce riiorari now attempts to again. bring this issue -

before the Supreme Court of the United States: on the

ground that Mr. Tenusiak’s testimony brought ani clement

into the case which was not before this Court upon the

eoriginal appeal. | | ; +

However, the history of this ease discloses that the at-

torneys for this plaintiff have consistently argued, through-

out all stages of the previous appeal, that the decedent was

doing seaman’s work: The briefs filed by: the plaintiff, as-

appellee in the previous appeal, as respondent in opposi

tion to the petition for Writ of Certiorari, and as respon

dent in the appeal before the Supreme Court of the United

States, devoted extensive space to ~— aspect of the argu-

ment.

Nor was the plaintiff’s position confined to a review of

legal authorities on the point. Strong reliance was placed

upon factual material in-an attempt. to demonstrate to the .

Supreme Court that the decedent was doing seaman’s work.

At page’21 of the respondent's brief filed with the Supreme

Court of the United States, in opposition to the first appeal,

counsel quoted extensively from proceedings under Mer-

chant Marine Counsel, United States Coast Guard, with

regard to the use of carbon tetrachloride aboard vessels.

Reference was also made to the Collective Bargaining:

Agreements with Maritime Unions, which list electricians

~as a classification of maritime employment. |

-

Accordingly, ii is apparent that this issue was placed

' squarely before the Supreme Court of the U nited States,

and the testimony of witness, Teausiak, has added no ele-

ment which was hot present during prev ious stages of this

litigation. < :

_ .\s pointed out by Mr. Justice Stewart in the original

_ opinion of this Court, this decedent’s work was so foreign

tothe work ‘‘ordinarily’’ performed by the ship's crew that

it could only be done when the ship was dead and at a

time when the crew members were not on the ‘vessel... It

seems obvious, that testimony by Mr. Tenusiak that in his

—— “seamen had on occasion performed’ the same

‘t¥pe- ‘of work does in no way affect the validity of this

Court's finding upon the first appeal.

‘It appears almost facetious to argue that the decedent's

work became ‘work traditionally done by seamen”? by rely-

ing upon ‘the testimony that the witness knew of occasions

when, a seaman performed this job.

Undoubtedly, testimony could be obtained to the effect

that seamen have on occasion used riveting and welding

equipment but this obviously would not extend the war- -

ranty of seaworthiness to shipyard employees performing

structural repuirs upon a vessel in a shipvard.

There appears to be no need to enumerate the numerous

lower Court decisions which Have cited and relied upon the

finding of this Court in Halecki v. Pilots Association, 358

“U.S. 613." We shall refer to only one case, which was also

cited by the cross-petitioner, and shall quote briefly from

the opinion of Cireuit Judge Medina ‘in Lawlor v. Socony

Vacuum, 275 F. 2d 599 (Ca-2, 1960), Cert. den., 4°L. ed. 2

1728. Tere the Court granted the warranty of seaworthi-

ness after ‘Yinding that the plaintiff?’ was doing seamen’s

. : . tee ‘ ‘

work, and it is significant to note the language used by

Cireuit Judge Medina at page 603:

‘ 7 z a

Trad M44 that if thé injured shore-base worker

“was ehgaged in work not traditionally or customar-

ily portormed by members of the crew of the vessel

as turned out to be the case in Halecki, there could

he not recovery for unseawarthiness.”

It is respeetfiudly contended theat the use of the words

“traditionally or customarily” which are found through--

out the relevant opinions, clearly reject the cross-peti-

se . i 9 * S ° * \ .

fioner’s argument that an occasional performanecé of a

particukir job rendersat traditional seamen’s work.

CONCLUSION — Dae

The au Petition for Certiorari should be denied

because the issue presented has already been officially

decided: by this Court.

Respectfully submitted,

Lawrence J. MAnMONEY

(Dovenenry, Ryax, Matoxey & PeLircnino).

Counsel tor Petitionsrs and Cross-

Respondent:

67 Wall Street

New York 5, New York