# Cross Petition for Writ of Certiorari — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0726%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Cross Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 364 U.S. 941 ## Text 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? © | ae pats - —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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0726%3A2. Public record. Not legal advice.