Petition for Writ of Certiorari — American Dredging Co. v. Gulf Oil Corp.

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“Supreme Court of the United States

October Term, 1960.

AMERICAN DREDGING COMPANY,

. ' | id bilro abe ,

) . :

Us.

GULF OIL CORPORATION, STANDARD OIL COMPANY,

ATLANTIC PIPE LINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTIC REFIN-

ING CO., PIONEER OIL COMPANY and HERMAN S.

STOFFMAN and BENJAMIN STOFFMAN, =

i . : Tea laid we

. ’ *

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

) FOR THE THIRD CIRCUIT.

T. E. Byrne, Jr.,

~ Krusex, Evans & Saw.

' egy 21 South 12th Street,

{ . ; Philadelphia 7 Pa., ;

iS : Connsel tor Petitioner,

. Seeruat nal, 711 Se SOth St oP la 43, Pa.

i ¢

INDEX TO PETITION.

Page

PE ceicchviacsekasdarncscnesdavesdveen seegens 2

QUESTIONS PRESENTED .......... ares tncentas cake ¥ - 2

ee ee ere ey Pree 2

Basis for Federal Jurisdiction .................: pee 3

Basis FoR GRANTING THE Writ ..... j puis beak nae nae : i 4

The Court of Appeals Has Misconstrued Prior Decisions ,—

er veiUis Sc heue be cakekesdsedkcnmet 7 4

American’s Action Against Gulf May Be Maritime But ,

it Is Local ....... SlIsded ei pbme wt eaden need cae Oe

The Questions Presented Are of Far-Reaching Importance — 14

“Conciusion ......... eknaek woken ins cadumutpeds awit 14

APPENDIX A ..... Shan de a eee eee Pere ret Cer eae la

Opinion of the District Court . 2.2.2.2... rere eos

Opinion of the Court of Appeals ... 2.0.0.0 0.02 eee. 7a

Order of the Court of Appeals Sur Petition for > Rehearing 8a

es era wens ncawascabenkhneswendaned l3a

Jonés Act, 46 U..S. C.‘A: O88 . 22.22... Srey ae =. &

SOGPE GORA) «5 oon 05s esd hc. ne. eee 13a

ee a ee ARES PEE Se ace ee l4a

MG BOE oiled cin emiansenaa Sap adneaaer l4a

TABLE OF CASES CITED..

: Page

American Mutual Liability Insurance Company v.- Matthews,

Oe ee UG, BE) aay sins kcn ccngaeessesccvenes 6

Baccile vy. Halcyon Lines, 187 F. 2d 403 (C. A. Me tex; ees 6

srown v. American-Hawaiian S. S. Co., 211 F.2d 16 (C. A. 3) 4,11

Builders Supply Co. v. McCabe, 366 Pa. 322 (1951) 2.......° 212,13

Caldarola v. Eckert, 332 U.S. 155 2... 2222.22. -.05- Kicncey 13

Crawford v. Pope & Talbot, 206 F.2d 784. (C. A. 3) 2.0.0... 4

Crumady v. Joachim Hendrik Fisser, it = Beer 6

Erie R. Co. v. Tompkins, Bred. OO. vc wadsccess anaes e-- is

George A. Fuller Co. v. Otis Elevator Co., 245 U.S. 489... a

Halcyon Lines v: Haenn Ship Ceiling and Refitting Corporation,

asabucnteseceveuseveiacsceves 4,5, 6,7, 13, 14

TABLE OF CASES CITED D (Continued) uy

. Page

Hess v. United States, 301 oS. 3M CT Pe xd 8S, 14

Hitaffer v. Argo. ine Co., 183 ia , 2311 (C. ‘A. 1D. of nt Eee 0

Just v. Chambers, 312 LF, NE a Rae nae ey oF

Kernan v insane Deca: ei. 355 U. S. 426 .2. 4,5 J 13,14

Kernan, Administrator v. Gulf Oil Corporation, [Civil Action

No. 15908, U.S. D. a 8 ee Rete Chk es ln

says ~ Waterman S. S. Corporation ¥ *. ae & McNamara,

/ + Ine., 272 F. 2d 823. Cert. Granted 362 U. S. 926, argued

October 20, 1960, No. ig Une ee eT Tee ave See

Maio v. Fahs; 339 Pa. 180 (1940) 000 ee th:

Maryland Casualty Co. v. Cushing, 347 Lh eM eke tages 13

Eugene Moran, The v. New York C. SH. R.R. Co, 212.

i eee ee erie ee uc Ritevsnsranes §

Pennayteaisin R. Co. v. Sun Oil Co., 383 Pa. 537 (e206) .... 4213

Petition of L.. soyer’s Sons Co., 25 F.2d 602 (C. ae: ences 7

Romero vy. International Terfninal ai Co., 338 U. *..

cache ee ee ee een Eelam er rene

Ryan Stevedoring Co. v. Pan- Atlantic S. S. Corporation, $50

U.S. 124 Aromatic La noone es kaakd 6

Skiriotes v. Florida, 313 us 5 PRK aka se hy. eee ee eer “*

Soui..ern Pacific Co. v: eae 244 we. Ree 7 ar Maen? A

Standard Oil Co. v. Robins Dry Dock & a Co., 32 F.2d

rail ete al Mek et Pee or 7

Toomer v. Witsell, 334 U. a EE A a aI Pile cee Sen BB 3

M/V Tungus v. Skovgaard, 358 U.S. 588 0000000 213014

Union Stockyards Compaiy of Omaha v. Chicago, nan &

Quincy Railroad, 196 U. ne | Andes Ore ae eT ee ce :

United States-v.-Rothsehild International Stevedoring Co., 183

IF 2d 381 (C. A: _, ga. Gano » 6

Washington Gaslight Co. v. Distri ‘t of Columbia, 161 U. S. 316.0 8,9

Weyertineuser Ss. 5. Co. v. Nacihe ema Operating Co., ‘355 U. S.

WM b eanan nike as cece: WAAR OMENKG wie bS end 064 oe uc 6,7

Wilburn Boat Co. *. Fireman’ s Furid Insurance Co., 348 U. S.

OP vk ews tue SP EMERNCBEREDTRCEEG DN 4 ESO yak deacon orn? 13, 14

STATUTES AND AUTHORITIES CITED. -

. Page

ALL. 1.; Restatement of Re “stitution, aren 8,12

Coast Guard Navigation Regulations, 33 C. F. R. § 80. l6(h) . 2

Collier on Bankruptcy, Second Edition, Section 63.13 ..... ee? ata

Hodges * ‘Contribution and Indemnity Among -Tértfeasors”, 26

oe ee || ee ‘Satavecs pedinees 8.

37 Iowa L.. Rev. ight AEN Sees Chloe 8

Jones Act, 460, S.C. GOOR o oovsc cc cee aoe nr

Longshoremen's inl Harbor © Workers’ Compensation Act, .

Section 5, oS SS, a rans 6

Mishkin; ‘ ‘The Variousness of *F. -deral Law’ ” 108 U. of Pa. L.-

se ces eRAR RR AROS erry Mivsinkeenees 14

28-U, S.C. § 1254 TAS MR. aN ame Ee, See eae — Vg

USC OMe oe Er DOA hese ies ee a

de | Sn Qriavssvas eid aincin’ RATE. i

: Supreme Coutt of the United States.

Ocroser Term, 1960

No.

“AMERICAN DREDGING COMPANY,

ao “ Petitioner,.

GULF OIL CORPORATION, STANDARD OIL COM-

PANY, ATLANTIC PIPE LINE COMPANY,

AMERICAN OIL COMPANY, TEXAS COMPANY,

ATLANTIC REFINING CO., PIONEER OIL COM-

PANY and HERMAN S. STOFFM AN and BENJA-

MIN STOFFMAN,

“Saini

PETITION FOR A WRIT OF CERTIORARI TO THE

. UNITED STATES COURT OF APPEALS ~

; | ' FOR THE THIRD CIRCUIT -

The Petitioner prays that this Honorable Court shall

issue a Writ of .Certiorari to review the judgment of the

United States Court of: Appeals for ‘the Third Cireuit en-

| tered September 16, 1960, upon Petition for Rehearing,

? amending the original opinion of the same Court filed April

21, 1960: _The opinion of the United States District Court

’ for the Eastern District of Pennsylvania is reported 175 F.

Supp. 882 and at 1959 A. M. C. 2418. The opinion of the

Court of Appeals is reported at 282 F.2d 73 and at 1960

» . A. MLC. 1802.

Petition for a Writ of Certiorari

JURISDICTION.

The original opinion and judgment of the Court of Ap.

peals was entéred April 21, 1960. Pursuant to the rules of

the Court of Appeals for the Third Circuit, a, Petition for

' Rehearing was fimely filed and the .J udgment Sur Petifion.

for Rehearing was entered September 13, 1960, at which

time the opinion of April 21, 1960, was amended with opin:

ion and dissenting opinion. The Jurisdiction of this court

is invoked under 28 U. S. C.°§ 1254. ps

QUESTIONS PRESENTED.

In Kernan v. American Dredging Company, 355 U.S.

426, the’ judgment of this Court was that. American was

liable for death and injuries which had oceurred when-its

ug was ignited by burning gasoline in the middle sf the

—Tiver. There were judgments and settlements of the elainy:

against. American and Ameriean filed a libel against Gulf.

Oil Corporation and pther riparian owners to reeover for

the.damage to its tug and the sums which it had paid as

judgments and settlements in the death and in JUrY cases,

The g ostion presented is whether, in these circum.

stances, a libel by American against the alleged tortfeasors.

. who negligently deposited or permitted flammable material

to. be upon the surface of the river, states a cause of action

for the sums paid to satisfy judgments and to settle the

- death and injury cases. = a

Statutes invoived are the Merchant Marine Act, Jones

Act, 46 U. S. ©. § 688, and: the Coast Guard Navigation

Regulations, particularly 33 C, F. R. § 80.16(h). 3

STATEMENT OF ‘THE CASE.

After American had paid judgments and made settl:-

ments following this Court’s decision in Kernan v. Ameri-

_can Dredging Company, 355 U. S. 426, it filed its libel in |

)

Petition for'a Writ of Certiorari - a

admiralty in the United States District Court for the Kast-

ern District of Pennsylvania. All of the parties were resi-

dents of Pennsylvania: *American’s libel set out claims.

both for property damage and for indemnity for the sums

it had paid in the death anit injury cases. American joined

other riparian owners in addition to Gulf Oil Corporation —

Which was alreaily a defendant in separate civil suits insti-

tuted by Kernan and others as the result’ of this same

disaster, ee SE

-. Some of the respondents answered, others filed exeep-

tions and ultimately all of the respondents, acting-in. eon.”

cert, filed exceptions and sought dismissal of Ameriean's

libel. The Distriet Court dismissed it in its entirety. [Ap-

pendix Ta]. On appeal the: Cireuit Court first: affirmed.

[Appendix 7a]. : ° é

American .filed a Petition for Rehearing in the Court.

of Appeals for the Third Cireuit and on petition and an-

“ swer, without oral argument, the Court of Appeals amended

its original opinion and judgment. [Appendix Sa]. It still’

dismissed so much of American's claim as sought indemmity

for the sums paid in satisfaction of thé death and injury ”

claims. It reversed so much of the judgment of the District

Court as ‘had dismissed Ameriean’s claim for the extensive

- damage it had sustained by reason of damage to its tug and

loss of use thereof. Tt. remanded this claim for property —

damage to the Distriet Court for further. proceedings.

Chief Judge Biggs filed a dissenting opinion on the Petition *

for Rehearing. He agreed with the majority that Ameri-

can Was entitled to proceed to trial to prove its property

. damage claim. He dissented upon the ground that Ameri-

ear was also entitled to, proceed to trial on its: indemnity

action and that its right to, indemnity was not barred by

rules of the general maritime law. gota, ie

| Basis for Federal Jurisdiction. .

The jurisdiction of the Federal Court, sitting as a

court of admiralty, was invoked upon the basis that the

actionable facts had occurred upon navigable waters.

“

4 Petition for a Writ of Certiorary -

3 .

7 BASIS FOR GRANTING THE WRIT.

idan /

_. The Court of Appeals Has Misconstrued Prior Decisions

en of This Court. - .

- The Courts below proceeded upon the basis that in

_ Kernan v. American Dredging Company this Court had

labeled American a tortfeasor as that’ term is usually un-

- derstood and that since Halcyon Lines v. Haenn Ship Ceil-

tng and Refitting Corporation, 342 U. §. 282, had held that

courts of admiralty and maritime jurisdiction would: not

fashion rules of contribution as between joint tortfeasors,

the decision likewise barred Amerivan’s ‘claim for indem-

nity. ee -* iS |

The Court of Appeals went further. ft held, citing its

own prior decision in King v. Waterman S. S. Corporation

v. Dugan & McNamara, 272 F: 24 823, Cert. granted March

28, 1960, which in turn relied upon its decisions in- Brown 9

American-Hawaiian S. S. Co., 211 F. 2d 16 (¢, A. 3), and

. Crawford v, Pope € Talbot, 206 F, 94 784 (C. A. 3), that any

‘claim.for indemnity, in the maritime law at least, must be bot.

tomed upon a contract, express or implied. Since’American

had no contractual relationship with the oil companies, ri-

parian owners of the land ad jacent to the river which Afner-

ican’s tug was navigating at tHe time of the fire, no rieht

of indemnity could ‘arise in American and, even withnit

factual proof of any sort, the libel’ alleging negligence of

‘the riparian Owners Was nevertheless defective and subject

to dismissal in limine. It nevertheless recognized the right

_ of American to maintain the action to recover for the dam-

. _ age to its property.

American contends-that this Court’s decision in Kern:

v. Ameritan Dredging Company did not hold that Ameriean

was a. tortfeasor vis-d-vis persons not within the purview

of the Jones Act. American contends that this Court's de-

“cision in Kernan did not label it as some sort of a mad dog’

, “ee

)

Petition for a Writ of Certiorari 3

i ws

upon whom negligent tortfeasors were free to perpetrate

statutory Violations (33 U.S. Cy § 433; 83 UL S.C. § 407)3

and acts of negligence with impurity.

American contends that in the Kernan case this Court

did not overrule its.own earlier decision in The Eugene F..

Moran v. New York C.€ H.R. R.Co., 212 U.S. 466, and did

not abrogate the principle of general tort law which ‘‘im-

poses liability for violation of the statutory duty only where

the injury is one which the statute’was designed to prevent?’,

Kernan v. American Dredging Company, 355 US. at, 432.

Of course, neither the F. E..L. A. nor the J@&ps Act

govern -the relationships. of American vis-a-vis Gu f,? al-

though they were the basis for this Court’s holding’ that -

American was liable to Keenan. We emphasize that Amep-

jean was not a tortfeasor in the usual sense and.that Ameri-

ean’s libel alleged that Gulf was a tortfeasor in the usual

sense because it created the condition (gasoline on the sur-

face of a navigable river) or failed to warn the passing tug

of the presence of the dangerous material, for there was

no prohibition against, open, lights, fires or other sources

of ignition.in the area. . | Mos

The'District Court relied upon this Court’s decision in

Haleyon Lines v. Haenn Ship Ceiling and Refitting Corpo-

eration, 342 U.S, 282, but that decision, we submit, does not

coutrol this ease. This Court’ will recall that Certiorari

Was granted in Halcyon Lines v. Haenn Ship Ceiling and

Refitting Corporation to resolve the confliet which had

arisen among intermediate Federal Courts which were at-

tempting to fashion a rule of contribution where an injured

plaintiff had recovered damages based upon alleged unsea- |

~ eps take

1. Making it unlawful for any person to discharge or pefmit the

discharge of petroleum pro ts upon navigable. waters and making

it unlawful to deposit refuse in navigable waters generally. (Re-

printed in full, Appendix 14a.)

‘2. For simplicity we refer to all of the respondents collectively

‘as “Gulf” because it‘is the first named of the respondents. . There is

no implication that Gulf is the actual or the only tortfeasor against

whom American will producé evidence if permitted to proceed to trial.

G . * FAsbitten for a Writ of Certiorari if

worthiness of a ship owned. by the defendant and where the

negligent third party defendant-employer was protected by

Section 5 of the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S. C.§.905. When this Court de.

cided Halcyon Lines y. Haenn Ship Ceiling and Refitting

Corporation there were four divergent rules, fashioned ly

as many different Courts of Appeals. Compare Ameririy

Mutual Liability Insurance Company v. Matthews. 182, Le

322 (C. A. 2); United States v. Rothschild International Si, -

vedoring (o., 183 F. 2d 181 (C. A. 9), Mitaffer ¢. clrqonie

Co:, 183 F.2d 811 (C..A. D. of C.) and Baceilé ve. Maleyui

Lines, 187 F. 2d 403 (C. A. 3). eae

In Halcyon it was argued that the rule the Third Cir-

cuit had fashioned was not a praetical one under the Lony.

shoremen’s and Harbor Workers’ Comp@nsation Act. hew-

ever apt it might be under Pennsylvania's Compensation .

Act. Cf. Maio vr. Fahs, 339 Pa. 180 ( 1940). See brief for

respondent in this Court, No.-62, October Term 1951.

It is perfectly clear that this Court's deeision in [/i-

cyon Was not intended to be applied blindly to all situations.

This Court made it clear that it was not enunciating a rule

as to all contribution in all maritime cases and subsequent

decisions.in Ryan Stevedoring Co. v.Pun-Atlantie S, 8. Cor-

poration, 350 U. S. 124, Weyerhaeuser S. 8. Co. 0. Sacirema

Operating Co., 399 U.S. 563, and Crumady vr. Joinchim

Hendrik Fisser, 358 U.S. 423, demonstrate this. ° :

This Court's decision in Ryan Stevedaring Co. v. Pan.

Atlantic 8. S: Corporation makes it clear that where the pre-

“spective indemnitor is an employer subject to the Long-

shoremen’s and Harbor Workers’ ( ‘ompensation Act, the em-

_ ployer may contract away t® benefits conferred upon him

under the Act. This Court said, 350 U. S. 124 at 133:

‘‘Baeause respondent in the instant east relies en-

tirely upon petitioner’s contractual obligation, we do

not meet the question of a noncontractual right of in-

demnity ... .”

N° Petition for a Writ of Certiorari 7

ae mere .

Later this Court said: _

““. .. in the area of contractual indemnity art ap-

plication of theories of ‘active’ or ‘passive’ as well as”

‘primary’ or ‘secondary’ negligence is inappropriate. ’’

_ [Emphasis ours} eyerhacuser SS. Co. v. Macirema

Operating Co., 355 U.S. 563 at 569.

We suggest that in Halcyon this Court*did not say

there could: be no andemnity in* the absence of a contract.

Rather it held-that,a noneontractual right of contribution

could not stand in the face of the exclusive ‘liability provj-

sion of Seetion 5 of the Longshoremen's and Harbor Work-

ers” Compensation Act. so

The dissenting opinion below points out that non-

contractual indemnity: is recognized in the maritime law in

‘a proper situation. “Standard Oil Co. v. Rubins Dry Dock

€ Repair Co., 32°F. 2d 82 (C. A. 2), and Petition of LL.

Boyer’s Sons Co., 25 F. 28 602 (C.-A. 2). In the Standard

Ou ease:

‘The complamt was founded on the primary obli-

gation of the Robins Dry Dock & Repair Company, that

chad furnished the gangway and had invited the plain-

tiff’s employees: to use it, to keep such gangway in a

safe condition.’ : ;

The Court said: a .-

. ‘*We can see no real distinction between the legal,

principles involved in this ease and-in Washington Gas-

light Co. v. Dist. of Columbia, 161 U. S. 316, 16S. Ct.

* O64, 40 L. Ed. 712, Geo. A. Fuller Co. v. Otis’ Elevator

Co, 245 U.S. 489, 38 S.Ct. 180: 62 L. Ka. 422, and

Petition of L. Boyer's. Sons Co. (C. C. A.) 235 F. (2d)

602. In all three of those cases a third party” had

recovered against a person who was under a nondele-

gable duty to furnish a safe place to such third person,

but in each case the primary and affirmative wrong

Was occasioned by the defendant against which indem-

nity was sought.’’ 32 F. 2d 182 at 183.

o ; .

8 , Petition for a Writ of Certiorari

This Court has recognized non-contractual indemnity in

non-maritime eases. “Washington Gaslight Co. v. District vo

Columbia; 161 U.S. 5316; George A.-Fullér Co. vo Ofi<

Elevator Co., 245 U. S. 489. * :

We suggest that the fundamental error of both Courts

below was in regarding Halcyon as controlling all situations

of non-contractual indemnity [as well as contribution] and

_in failing to recognize that, whatevér duty American miry

have breached to its own employees by reason of obligations

imposed by the Jones. Act, American is’ not a tortfeasor as

to Gulf, which negligently deposited flammable petroleum

products upon the surface of a navigable stream. Gulf

owed a duty to refrain from negligent acts as to both Ameri.

ean and American's emptoyees working on its tug. American

owed such a high duty of care in the circumstances of this

- case only to its own employees. Therefore, the rule should

be that where, as between the parties to an indemnity action,

both breached a duty owed to the alleged injured plaintiff,

but prospective indemnitee (American) did not breach a

duty owed to prospective indemnitor (Gulf), then indemnity

should be allowed. See Hodges “‘Centribution ‘and In-

demnity Among Tortfeasors’’, 26 Fex. L. Rev. 150 at 12.

See also Section 96, A. L. 1. ‘Restatement of Restitution”

and 37 lowa L. Rev. 517 at 588. | ;

We do notgo so far as to say that this Court may not

read into this case an implied contract that Gulf’s tort.

feasorship as to American requires that it indemnify Ameri-

can not only for the latter’y direct loss of property but also

for ifs indirect loss traceable to Gulf’s dereliction or breach

of implied contract. This would not be new law. Compas

Collier on Bankruptey, Second Edition, Section 63.13.

This Court has held what is and is not a proper situation

' for indemnity. “In Union Stockyards Companu of Omaha «.

Chicago, Burlington & Quincy Railroad, 196 U. 8. 217, this

Court denied recovery for indemnity beeause the prospective

indemnitor and the prospective indemnitee had both failed

to make/a proper inspection and discover a defeet which

"Petition for a Writ of Certiorari . 9

neither had created. This Court thére held that both parties

breached duties *‘of the same character”. This Court then

went on to point to the many instances Where éases had been

taken out of that rulé and indemnity had been awarded.

sel in’ order that the ultimat® Noss’ may he

visited upon the principal Wrongdoer, who is made to.

respond for all the damages, where one less culpable,

although legally liable to third persons, may escape the

payment of damages assessed against him by putting the

ultimate loss upon the jone, principally responsible for. ‘

the injury done.’’ 196 U.S. at 224.

This Court goes on. to refer to eases involving munici-

_ palities held liable for defects in streets or sidewalks caused

by negligence or active fault of adjacent property owners, ’

It cites Washing¥on Gaslight Co, v. District of Columbia,

— ‘ 5 , 7 =

161. ©. S. 316, and then states:

. . . . The same principle has been reeognized jn

the court of appeals of the.state of New York in Oceanic .

Steam Navel 0. U.Compania Transatlantica Espanola,

134. N. Y..461, 30 Am. St. Rép. 685, 31 N. E. 897, the

second proposition of the syllabus of the case being:

ay ‘Where, therefére, a person had been com.

pelled, by the pi sath of a-court having juris”

diction, to, pay damages*caused by the negligence *

of another, which ought to have been paid by the

wrongdoer, he may recover of the latter the amount

ar so paid, unless he was a party to the wrong which

caused the damage.’ .

. : : . @ * ;

‘When two parties, acting together, commit an

illegal or wrongful act, the party who is held. re-

sponsible in damages for the act cannot have in-

demnity or contribution from the other beeanse beth

in are equally culpable or partivipes criminis, and the

damage results from their joint offense. This-rule

10 | Petition for a Writ of Certiorari

does ot apply when one does the act or creates the :

nuisance, and the other does not join therein, bur js >

thereby exposed to liability and suffers damage,

He may recover from the party whose wrongful act

has thus exposed him. In such case the parties ar:

not in pari delicto as to each other though, as to

‘third persons, either may be held liable.’ ™

U. S. at 225, 226. oe

If both American and Gulf had negligently ‘deposited

flammable liquids on the surface of the river, Ameriesn’

position would be. different. American violated «a patery

regulation intended only to prevent collision, for the regula

tion was aimed at protecting persons and property fron,

injury as the result of collisien at night. Gulf in its Capacity +

as the operator of a large refinery, was not.one of the clas-

comprehended by the regulation and clearly the relationshi:

between American and Gult is not tonched by the Jones Aer,

The fundamental basis of the entire doctrine of inter

nity is to prevent unjust enrichment. In this regard it is an

interesting corollary that in the ease of Kernan, Admin.

trator v. Gulf Oil Corporation, Gulf filed & motion for sun—~'—

mary judgment, basing it upon; -—— -— a

- Me undisputed faet that in a companion

proceeding in this Court, captioned ‘In The Matter o?

the. Petition .of* American Dredging Company’, judy.

ment was entered in favor of William Kernan, Admin.

istrator, said judgment ‘was marked ‘satisfied’, that:

William Kernan is one and the same person as ine the

-above case, the ineident giving rise to the Causes jst!

same and the eaases of action asserted are the same or >

‘similar.’? [Civil Action No. 19908, U.S. DOC, EP,

Pa.) a. eon

li would be difficult to demonstrate a clearer ease of the

unjust enrichment of Gulf, the party which negligent!y

permitted the flammable products to be deposited upon th >

surface of the river, creating ‘‘a trap for the unwary."’ ee

Petition for a Writ of Certiorari 11

The Courts withiir. the Third Cireuit are of the view

. that there must be a contract between twe parties heforeea

right of indemnity can arise in one of them. That was.

. clearly expressed in Brown v. American Hawanan 8. S.Co,

211 F. 2d 16 at 18 where the Court said:

| ‘In answer to this suggestion [a righg of indemnity

exists under certain cireumstances without a contractual

relationship] we repeat what wethought had been made

clear by the Crawford case: [Crawford vo Pope &

Talbot, Ine., L06-F. 2d 784 (CA, 3)] there can be neo

action of indemnity in these eases which is not based

on the violation of some contractual duty."* -

The Court of Appeals followed that same reasoning in

the single decision cited as authority in its opinion in the

case at bar, A ing t. Waterman 8. 8. Corporation v. Dugan &

MeNamara, Ine. 272 F. 2d 823, Cert. Granted $62 U.S. 926,

argued October 20, 1960, No. 35.4 |

American's Action Against Gulf May Be Maritime

-But It Is Local. |

~. Pennsylvania clearly recognizes indemnification in situ-

ations such as this. The need for uniformity in Maritime

‘law does not’apply to this cause of action and fongress has

not legislated in the field, Pennsylvania law should Je per-

mitted to fill the void. ee

The actionable facts. in this ease occurred: upon the.

Schuylkill River, a) stream wholly. within the territorial

limits of Pennsylvania and one which does not form any

boundary between Pennsylvania and. any other state. II:

of the parties are either Pennsylvania residents or are doing

business upon land within the Commonwealth: |

— There can be io question but that Pennsyivania reeog-

hizes the right to indemnity, ° - 6

‘Without multiplying instances, it is clear that the

right of a person vieariously or secondarily liable for a

3. Reversed November 21, 1960 (29 I... W. 4035) while this

petition Was In page proof. :

‘o

12 Petition for a Writ of Certiorari

tort to rover from one primarily liable has been

universally recognized.”’ | | '

‘ e a : * ;

‘There is, of course, a fundamental differenei? }...

tween indemnity and contribution. The right of. in-

demnity rests upon a difference between the primary

and the secondary liability of two pérsons each of whom -

is made responsible by the law to an injured party. It

4s a right which enures to a person who, without active

fault on his own part, has been compelled, by reason of

sume legal obligation, to pay damages oeeasioned by the

initial negligence of another,and for which. he himself

is ‘only, secondarily - liable. The difference: between

primary and secondary liability is not based.on a differ-

ence in degrees of negligence or on any doctrine of

comparative negligence,—a doctrine which, indeed, is

not recognized by the common law. (see Fidelity &

Casualty Co. of New York v. Federal Express, Inc. 126

F. 2d 35, 40). - It depends on a ’difference in the

character or kind of the wrongs which cause the injury

_ and in the nature of the legal obligation owed by each

of the wrongdoers to the injured person.”? Build, rs

Supply Co. v. McCabe, 366 Pa. 322, 327-28," 395-26

(1951). ; >

-It is clear that in PennsvWrania the right of indemnifiea-

tion does not derive from contract, although it is equally.

‘Clear that a coutract relation could have been resorted to

by the Pennsylvania Court*in deyeloping the right. Penn.

sylvania R. Co. v. Sun Oil Co., 383 Pa: 537 (1956). I:

is clear that Pennsylvania applies. Section 96 of the A. L. I.

Restatement of Restitution. aes: ’

Whatever the present validity of Southern Pacifie Co. v..

. Jensen, 244 U.S. 205, we need not remind the Court of the

series of recent holdings committing to the States wide Scope

~ in regulating and creating rights and liabilities arpon the -

inland seas, and permitting their enforcement in Federal -

Courts. | “

4 ; ; ;

Petition for a Writ of Certioruri 13

Romero v. International Terminal Operating Co.,

358 U. S. 354; ,

Hess v. United States, 361 U.S. 314;

M/V Tungus v. Skovgaard, 358 U.S. 588 ;

Caldarola v. Eckert; 332 U. §. 155; -+~

Wilburn Boat Co. v. Fireman’s Fund ] nsurance

Co., 348 U. S. 310; |

Maryland Casualty Co. v. Cushing, 347 U.S. 409:

Just v. Chambers, 312 U.S. 383: nes

Skiriotes'v. Florida; 313 U.S. 69 at 73; —

_ Toomer v. Witsell, 334 U. 8. 385 at 393.

‘‘Maritime Law is not a monistic system’’, » Where

activities are ‘‘maritime’’, but so closely related or connegged

to the pervasive need for state regulation, and State Law

neither impairs nor destroys essential. uniformity or a de-_

clared congressional purpose, state power is recognized in

admiralty courts, roe :

The whole thrust of Gulf’s defense is to label American

a tortfeasor [Kernan v. A merican Dredging] and invoke the

rule of Halcyon Lines v. Haenn, supra. In so doing, Gulf

is referring to acts occurring wholly within the boundaries

of Pennsylvania, a state which recognizes and enforces a

non-contractual right of indemnity in the absence of willful,

active or primary. fault. Builders Supply Co. ve MeCahe.

- 366 Pa.'322; Pennsylvania R. Co. v. Sun Oil Co., 383 Pa. 537.

Speaking through its highest court, Pennsylvania’ has

declared it to. be against its Public Policy that a primary,

Active wrongdoer should escape the consequences. of his

Wrongful act soldly because an in jured plaintiff may have

elected to reeover his damages from another also legally

- Ttable, althongh less culpable in the sense that his wrongs

Were neither active nor primary. Nothing about Pennsy]-

Vania's Publie Policy conflicts with Federal legislation. The

Jones Act, Which. was held to spell out American’s liability °

to its employees, did not attempt to regulate those outside

the employer-employee relationship. In Brie R. Co. +.

o Tompkins, 304 U. S. 64, this Court recogmaed that federal

law is incompléte and interstitial in many instances and

14 Petition vd a Writ of Certiorart

that state law plays an important if not a basic role in

supplementing and completing national daw and federal reg

ulatory programs. See Mishkin, ‘The V ariousness of *F a

eral Law’ ’’, 105 U. of Pa. L’ Rev. 797. |

The Courte below failed, to recognize that,-in view of

this Court's decisions in- Roniero, Tungus, Wilburn Boat

and Hess, and other cases, uniformity is not essential in

- situations and state law is competent Ww here the situation

is ‘*maritime but local’’.

The Questions Presented Are of Far-Reachirfy Importance.

This is peculiarly the type of case which this € out,

should review. It presents an important question of mari

time law, Ze. . whether a right of indemnity ean OXist-in the

absence of contract. Review by this Court is neéessary to

determine the full scope of the meaning of this Court's deci-

sions in Kernan ve American Dre ‘dging C ompang and

Halcyon Lines v. Haenn. Surely the rule of liability in

Jones Act and F. E. L. A. cases will frequently be in isa

where an employer seeks to obtain mdemnity fiom an ee

tiv ely negligent tortfeasor. The ( ourt of Appeals has, ‘is.

the dissent by Judge Biggs points out, misconstrued prier

decisions of this Court and has unduly and, we submit, im:

‘properly limited the scope of actions for ‘indemnity in the

maritime law. It is in a small proportion of eases that a

contract will exist between a Jones Act employer and the

tortfeasor whose aetive negligence injuies his servant. ‘khe-

importance of the question in the field of maritime. fas

cannot be overestimated.

| CONCLUSION.

For the foregoing reasons it is respeet fully submitted

that this Court should-issue a Writ of Certiorari and should

review the judgment of the Courts below. :

Respectfully submitted,

T. E. Byrye, Jr.,

Krvusen, Evans & Snaw,

Counsel for Petitioner.

APPENDIX A.

___

OPINION OF THE DISTRICT COURT.

Filed Jaly 22,1959

By Hastie; Circuit Judge (sitting by special designation)?

This libel as instituted by Ameriean Dredging Co. de-

mands of certain riparian lancowners contribution or in-

demnity for damages libellant has had to pay for the

wrongful death of a seaman fmploved by. it. The fatal

aecident oeeurred-in Pennsylvania waters when a Volatile

petroleum product on the surface of the Schuylkill River

ignited as lbellant’s tug with a tow was navigating the

stream. Libellant was held for the seaman's death in the

ensuing fire on the theory that fumes from the oil which

coated the river were ignited by an open flame kerusene

lantern carried by the tow in a position Which was only three

feet above the surface of the river althoneh the law re-

quired a light to be shown at an eléyation ef eight feet or

more. Libellant alleges that respondents were at fault and

should respond, by way of eontvibation or i ndemnity beeanse

their negligence caused the solatile and inflammable sib.

Stance to be present on the surface of the river,

The ‘respondents have filed exceptions to the Jibel

claiming that as a matter of law they have no duty to make

libdlant whole and thus that the libel doés not state a cause

of action. | |

At the outset it is necessary -to examine the nature of

libellant’s liability which respondents are being asked to

share. This inquiry is answered by the opinion of the Sn-

preme Court in Kernan x. American Dredging Co., 1958,

309 U.S. 426, direeting, contrary to the decisions of the

courts below, that American Dredging Co. respond in elam-

ages for the fatal aecident then and now in question. Ta

(la)

2a. - Opinion of District Court

the Kernan case all of the Justices agreed that this canse

of action for: the wrongful death of a seaman in navigable

waters is a substantive right: created soleby by. federal law,

particularly the Jones ‘Act, 41 Sar. 1007, 46.0. S.C. ¢ 6s,

The majority of the Court then reasoned that it was enough

to make the shipowner liable foi the ‘seaman’s death that

the igniting of inflammable Vapor rising from the surface

of the river was caused by the placement of a ship’s light

much closer to the water than navigation regulations per-

. mitted. It mattered not that+this Statutory fault’ was the

. Violation of a duty imposed solely to make the light more

easily seen and this intended solely to protect against the

hazards of collision. True the scope of liability for negli-

gent injury, both at common law and in admiralty, is nor-

mally limited by the principle that the injured person has

a cause of action only if his interest, as in fact invaded,

lay within the risk of harm Which in legal contemplation

made the actor’s conduct blameworthy. The Eugene PF.

Moran, 1909, 212 U.S. 466; Restarement, Torts §$ 286; See

Seavey, Principles of Torts, 1942, 56-Harv. Law Rev. 72.

90. But it is enough under the Jones Act that fault, .

whether the breach of a statutory duty or otherwise, on the

part of an employer subject. to the Act has cansed harm te

his employee. Or, as the Court put it in the Kernan Case:

“The FELA and the Jones Act impose upon the

- employer the diity of paying damages when injury to

the worker is caused, in whole or in part, by the em-

ployer’s fault. This fault may consist of a breach of

the duty of care, analogous but by no means identical

to the general comion-law duty, or of a breach of some

statutory duty.’’ 355 U.S. at 432.

This rationale is spelled out beeause libellant argues

at length that in the Kernan case the Supreme Court ‘did

not hold. libellant to a tortfeasor’s primary liability for

harm caused by his wrong. The argument is ingenious but

not sound. It is conceded that by common law standards -

Opinion of District Court. | _ 8a

there was no negligence on the part of. libellant. But this

is true only because the accident eauved-was not within the

risk which made libellant’s conduct Wwrongtul. The fact re.

mains that the liability which has been imposed under the

Jones Aet is a liability for harm caused by the actor’s

wrong. In legal contemplation such an actor is held as a

tortfeasor even though he has heen denied the benefit. of

certain traditional limitations on the area and scope of

_ liability. ~ *

It is now necessary to examine the respondents’ situa-

tion in relation to the fatal injury for. which libellant’ has

had to respond in damages. * This libel asserts, and at the

present stage we must aceept its assertion, that negligence

of the respondents caused. the dangerous accumulation ‘of

volatile and inflammable materials on-the surface of the

river. The great risk inherent in such-a condition materi-

_ alized in the fatal catastrophe Which oceurred here. Thus.

the respondents also may be liable as tortfeasors for the

fatal injury of libellant’s employee. te

. The foregoing analysis of the nature of the ¢laims in-

volved is relevant. to the question whether, as libellant con.

tends, the law of" Pennsylvania may and should be utilized

as the source of the rights of contribution and indenuiity

Which libellant asserts, It has already been pointed out

that the obligation which libellent has satisfied and pe

spondents are now asked to share has been défined and im-

posed by the Supreme Court iti the Kernage case solely as

a federally created right under the Jones ‘Act. In these

circumstances state law did not and could not play any part

in imposing liability on libellant. By the ‘same token at.

tendant ‘and ineidental obligations in the nature of rights

OVeF against others are derived, if at all,- from the same

source. The entire complex of substantive rights thus aris.

ing in this maritime causé is a creation of national law.

’

Compare Pope & Talbot, dnc. v. Hawn, 1953. 346 ULS. 4065.

Garrett v, Moore-McCormack Co., 1942, 317 U.S. 239; Che-

lentis v. Luckenbach S. S..Co., 1918; 247 U. S: 372.) Our

. a. . .. =

ta Opinion of District Court . j

inquiry then is whether national maritime’ law recognizes

a right of contribution: as an equitable. incident of such

Jones Act tiability as we have here? ~ ae: :

As concerns the right. of contribution for. maritirye.

wrongs the decisive case is Halcyon Lines v. Haenn Ship

Ceiling &.Refitting Corp., 1952, 342 U.S, 289." There the

Supreme Coart reasoned that only in collision cases has

_ the maritime law heretofore recognized a duty of contribu.

tion between parties who share legal responsibility for a

maritime injury. The Court then: considered whether it

should feel free to fashion rules of centribtition in a broader

arca of maritime wrongs. It was unwilling to do this he-

cause in the Jones Act, the Publie Vessels Act, the Long.

shoremen’s and Harbor Workers’ Compensation Act and

. Other statutes-Congress has substituted a legislative schemes,

of liability for judge made law over a broad area. True the :

Longshoremen’s and Harbor Workers’ Compensation Act

had special bedring on that ease, but the Supreme Court

gave no indication that. its decision was limited to cases’

involving that statute. Rather, it was the stated view of

the Court that in this area of statutory liability for mari-

time torts legislative action rather than judicial imposition

should determine whether the incident of.contribution is to

be recognized and, if so, whether equally or by degree ot’;

fault. among. tortfeasors responsible for an injury,

‘The rationale of the Halcyon ease is also fatal to libel.

lant's suggestion that it would bes proper here -for the ad-

miralty court to borrow a state cont ribution rule from the

law’ of. Pennsylvania. ©The considerations. whieh keep ad-:

miralty courts from fashioning their own rules of contribu-

—_ a

—

1. While our attention’ has been directed to wrongful death.

actions permitted in the admiralty forum under state Wrongful death

statutes, those cases’ are not relevant here. They involve enforcinz

state created rights and not the borrowing of conéepts from state law

in shaping substantive federal law. The Tungus v. Skovuaard, 1939,

358-47 S. 588. It is normal that state concepts be utilized in defining

State created rights but not in the defining of federal rights.

court.

“Opinion of District Court ‘Da

tion, .as applied -in the Halcyon ease, equally restrain

wlmiralty from borrowing any state rule in similar cir-

cumstances. Indeed, such borrowing weuld be merely a,

particular way of doing that which the Halcyon ease dis-

approves generally,” ; %, Pah

+ The libellant’s claim to be indenmified by the respond-

nig requires only brief diseussion, Authoritative recent

eases involving claims to be indemnified for liability’ im

posed under the Jones Act and other maritime law con-

sIstently recegnize that normally the right to indemnity

depends upon the eXistence of a legal relationship- In most

’tses a contractual On’—bet ween indemnitor and inden.

nitee, Crumady ve. The J. U. Fisser, 1959, 358 U. S. 423,

Weyerhaeuser 8. S. Co. e. Nacirema Operating. Co,, 195s,

HO) US. 563; Hagaus v. Farrell Lines, Ine. 3d Cir. 1956,

“oF FB. 2 477s Brown C. dmerican-Hawaiian 8. S. Co. 3d

Cir. 1954, 211 F. Sd 16. These cases are binding upon this

Here the lidellant shipowner and the several respond?

ent riparian landowners are in facet and in legal coatempla-

tion total strangers. Each has been independently at fault.

The unhappy conjunction of fault on the one side in Caus-

ing oil to coat the river and on the other in placing a lighted

lantern very near to the water caused the aceident in suit.

In such cireumstances the coust “an find no relatiotial basis

and ng legal justification for imposing an indemnitor’s lia-

hility on the respondents after the libellant has paid dam-

ives for injury caused by the active. ane coneurring wrongs

of libellant and respondents, Cf. Amerocean S. SoCo. ev.

Copp, th Cir, 1997, 245 F.2d 291. It is not necessary to

reach the question: left open by the Supreme ( ‘ourt in Rayan

Steredaring Co, t. Pan-Atlintic S. 8. Co, 1956, 350- U.S.

IM. Whether absent any relationship between those respon-

siole for maritime torts, admiralty will employ eoneepts of

“primary”? or “active fault as distingdished from **see-

ondary’ or ‘passive?’ fault as a basis for imposing an

. - .

6a | Opinion of District Court

obligation to indemnify? For here the statutory wrong of

libellant and the common lay negligence of respondents

- were plainly concurring causes simultaneously active and

effective in inflicting injury.

The exceptions ‘to the libel will be sustained and the

libel will be dismissed.

/s/ Wiiutam H. Hastie,

Circuit Judae.

2. How in legal theory this would differ from contribution is

not clear. ’

° ; Ss

‘ Opinion of Court of Appeals - 7a

e : ;

OPINION OF THE couRT OF APPEALS.

‘(Filed April 21, 1960)

Per Curiam.

While appellant ’s flotilla of a tug and two seows was

proceeding down the Schuylkill River, Pennsylvania, the

river surface in the ‘vicinity beeame ignited. As a result:

two of hellant’s seamen lost their lives, two. others were _

injured and the tug was damaged. [y Suits ‘hased on the

_ deaths, appellant was held responsible, Thereafter it filed

this lihe] against certain landowners along the river in the

fire area, alleging their responsibility for the fire-and seck-

ing indemnity for its losses resulting therefrom. °

_ The district court ori exeéptions to the libel dismissed

it.’ In an exhaustive opinion, carefully following the lay

as-it at present stands in this cirenit,’ the court could find

no relationa! basis er legal justification for imposing an

indemnitor’s liability on the respondents in’ the eireum-

stances of this case. We must agree.

The Judgment-of the distriet court Will be affirmed.

ee + —— en on

3. King v..Waterman SS Corporation y. Dugan & MeNamara,

Ine., 272 F. 2d 823 (3 Cir. 1959). cert. granted Yarch 28, 190

8a: Order of Court of Appeals

ORDER OF THE: €OURT OF APPEALS

SUR PETITION FOR REHEARING. .

a (Filed September 13, 1960) 2

The opinion of this -ourt, filed April’ 21, 1960, wil!

be amended by striking the last line thereof. reading:

‘The judgment of the. district -court will be affirmed”

and adding the following: .

—_—- ‘

“The argument in-this case on exceptions to the libel

‘covered just the deaths and personal injuries arising out

of the accident above deseribed and for which appellant

had been held responsible. There Was no attempted dis-

tinction suggested between the personal injury phase and

the damage to appellant’s tug. Indeed the latter was not

even mentioned. :

“It is’true that in the libel filed January 6, 19%

(the aceident involved occurred December 18, 1952) there.

is an allegation in the same paragraphs which assert th

porsonal. injury situation, of damage to the tug and los

of its use. However, the whole force of. the presentation —

to the district court centered on the death claims Which

had been. reduced to judgment and: the personal @ur

claims which appellant had settled and paid. As a resu!

the court decided only the controversy whieh had bee:

argued to it. , . :

‘*Appellant, on its petition. for rehearing to this cour.

contends that the distriet court @ealt with its propern

damage claim ‘only. sub silentio’ and asserts that the prog

erty damage cause of action rests on grounds other tha

those which it based its suit for contribution or indeme

fication with respect: to its alleged, damages arising onto! |

~ the personal injury and death claims.

) ‘As wesread the district court opinion we think *

clear that, beeause of the manner in which the -exeeption

to the libel were argued; the questions in connection wit!

™~ ©

Order of Court of Appeals — , 9a

the property damage to the tug and loss of its use were

never fairly presented to the trial court and never passed.

upon, . :

“The judgment -of the district court will be affirmed

as to its denial of contribution or indemnity to appellant

by appellees arising out of the death and personal injury

claims in this matter, As to the property damage to the

tug.and loss of its use claims, the Judgment of the distriet

court will be vacated and that part of the case remanded

for proceedings as may be indicated, not inconsistent with

this opinion.’? ae

The petition for rehearing will be denied.

ere

By Bucs, Chief Judge, concurring in part and dissenting

in part. me Rei ,

, A

American Dredging Company’ has stated two causes

of action in its libel against Gulf Oil Corporation and

other riparian landowners along the’ Schuylkill River at

Philadelphia who will be’ referred to collectively herein.

after as *Gulf?’, American has claimed. first, damages

for injuries to its tug and seow caused by a fire which

resulted from the ignition by a marking light en Ameéri-

can’s barge of volatile petroleum products? which were

lving on the surface of the river; allegediy because of

the manner in which Gulf Operated its Waterfront faeili-

ties, American, second, seeks to recover from Gulf monies

paid by American in satisfaction of Judgments rendered

against it in favor of two seamen employed by American

Who died as a result of injuries incurred in the fire.

In Kernan y. American Dredging Co., 355 U. S. 426

(1958)', Milan’s Administrator, Kernan, was permitted to

recover against American by the Supreme Court ‘in the

l. Cf. In re Petition of American Dredging Co., 235 F. 2d 618

(3 Cir. 1956) and {n re Petition of American Dredging Co., 141 r,

Supp. 582 (£. PE. Pa. 1956).

“

10a Order of Court of Appeals ‘

absence of any showing of negligence’’ because of at defect

or insufficiency of the flotilla’s [the scow's] dighting equip.

ment’’ due to a Violation of the Coast Guard Regulation —

_ requiring’ the marking light on the scow to be at a height

_ Of no less than eight feet above the water? The Supreme

Court referring to principles of law determined by it to

be: applicable in’ cases arising under the Federal Em.

ployers’ Liability. Act and the Jones Act, applied. those

principles in the Kernan case and imposed Tiability on

American becausé the death of the seaman arose from a

breach. of the Coast» Guard Regulation even though the-

Regulation was not intended to prevent the kind of action

which contributed to the seaman’s injury and death. See

id. suprangod Ul-S. pp. 430-487,

. Yhat American was held liable to the seaman's adniin-

istrator for damages does not, bar American's action

against Gulf for the damage suffered by American's tag and

scow beeause Gulf cannot acquire the benefits of the Jones

Act which. applies only to seamen. In Short American's

rights against Gulf with respect to the damage suffered My

the tug and scow cannot be affected by the status accorded

the seaman against Ameriean. This aspect of the case

‘must be viewed as if no seamen had been injured. The

court below, however, made no specifie ruling on Ameri.

can’s @laim for direct damage to-its tug and scow and an

parently treated both of American’s claims alike? [ there:

2: See 33 U. S.C. A. § 178: 33 CFR SS8O1)6¢hd. The tre of

the relevant subchapter reads ; “Navigation Reqiiremeénps for Coren

fnland “Waters.” , It provides: “Scows not otherwise provided: far ss

this section on waters described in paragraph (a) of this seetion ©00)

carry a white light at each end of each scow, except that when 20

scoWs are massed in tiers, two or more abreast, tach of the out-:!

scows shall carry a white light cn its outer bow. and the outside +

in. the last tier shall each carry, in addition, a white light on the

part of the stern. The white .ight shall he carried not less tos 5

_ feet above the surface of the water, and shall be so placed as te ~’

“an unbroken light all around the horizon, and shall be of sc’

character as to be visible ona dark night with a clear atmosphere ‘at

a distance of at least Smiles”.

3. Laches also was asserted as a defense by Gulf butathis defen?

was not passed on by either this court or the court below.

Order of Court Of} Apeals - “4 lla

fore coneur in the View of thi! court thatthe ease ‘must be

remanded ‘to the court below for its determination of the

issues presented by this phase of the case. |

In respect to American ’s claim for indemnity or eou-

tribution from Gulf, it is conceded: that the Coast (ruard

Regulation violated by American was designed only. to pre-

vent maritime collisions at night. American, therefore,

cannot, at this, the pleading Stage of the case at bar, be

deemed to be a tortfeasor within the ordinary meaning of

the term for there has been no showing of diny prohibition

of a fire or a light in the river area whee the accident

occurred or proof that American knew or should have

known that the water had been covered with Volatile petro--

leum produets by Gulf. This point is made elearer if we

asune, arquendo, that Ameriean sscow not only had the

light on its deck twe and one-half feet above the Water but

als had a marking light eight feet “above the surface of

the river sas required by the Regulation. Under such cir-

cumstances the fire would have oceurred despite, the fact

that-the requirements of the Regulation had been met.

It follows that the Supreme *‘ourt aecorded a special

status to the deceased seaman: under the twe federal acts

referred to, This status is analogous to that Which he”

‘might have enjoyed had he Been covered by a workmen's

compensation det. If this were a workinen’s compensn fion

aet Case American would be etititled to recover over against

Gialf, if the injured workman hud a right of action against

Galt, UL, Fidelity & Guaranty Co..v. Elam: 108 Tenn.

IH, 278 S. W. 2d 693 (1995); and, by analogy, American -

should be accorded similar rights in this case. “Thy mari-

time law, uider circumstances similay to those alleged here,

authorizes recovery over from one primarily liable, See

Standard Oil Co. y. Robins Dry Dock and Repair Co, 32

F.2d 182 (2 Cir, 1929), and Petition of L. Boyer’s Sons

. "oe, 3 F. aa 602 (2 Cir. 1928). .

Haleyvon'Lines v: Haenn Ship Ceiling & Refitting Corp,

- 3420. S. 282 (1992) is-not relevant to these issues for in

12a _ Order of Court of Appeals

that case the shipowner’s negligence concurred with that

of the shoreside contractor in causing injury ‘to the ‘cop.

tractor’s employee. ; : ;

For the reasons ‘stated, I eon¢lude that this phase of

the case also should be remanded to the court below for

“+ -.., Urlal of the issues presented. ea

For these reasons I must respectfully dissent. from

the refusal of the court to grant the petition for rehearing

on the issue last referred to herein.

A I ay —

APPENDIX B.

Jones Act, 46 U.S. ¢. § 688.

» Any seaman’ who shall suffer personal injury in the

course of his employment may, at his election, maintain

an action for damages at law, with the right of trial by

jury, and in such action all statutes of the United, States

modifying or extending the common-law right ‘or remedy —

in case of personal injury to railway employees shall ap-

ply; and in case of the death of any seaman as a result. of

any such personal injury the personal representative of

such s@aman may maintain an action for damages at law

With the right of trial by Jury, and: inpsuch action all stat-

utes of the United States conferring or regulating the right

of action for death in the case of railway employves: shall

be applicable, Jurisdiction’ in such actions shall be under

the court of the district in which the defendant employer

Tesides or ih which his principal office is located.

33 CFR §80.16 (h).

Scows not otherwise provided: for in this section on

Waters deseribed in paragraph (a) of this seetion shall Carry:

a white light at each end of each seow, except that when such

SCOWS are’ massed in tiers, two or more abreast, each of

the outside seows shall carry a white light on its outer

bow, and the outside scows in the last tier shall each é¢arry,

in addition, a white light on the outer part of the stern,

The white light shall be carried, not less than 8 feet above

the surface of the Water, and shall be so placed as to show

an unbroken light all around the horizon, and shall be of

such a character as to be visible on a dark night with a

clear atmosphere at a distance of at least 5 miles,

(13a)

FS a dae a tS Ra

2 &

“.

Cp ‘

Be esse

Aone

ee eee

bE REO age:

l4a | Appendix B

(33 U. 8. C. § 433.

Except i in case of emergency imperiling life or property,

or unavoidable accident, collision, or stranding, and except

as otherwise permitted by regulations prescribed by the

Secretary: as in sections 434-437 of this title authorized, it

shall be unlawful for any person to discharge, or suffer, or

permit the discharge of oil by any method, means, or manner

into or upon the coastal navigable waters of the United

States from any vessel using oil as fuel for the generation of

propulsion power, or any vessel carrying or having oil

thereon in excess of that necessary for its lubricating re-

quirements. and such as may be requiréd under the laws of

the United States and the rules and regulations prescribed

thereunder. The Secretary is authorized and empowered to

preseribe regulations permitting the discharge of oil from

vessels in such quantities, under such conditions, and at such

times and places as in his opinion will not be deleterious to

_ health or sea food. or a menace to nav igagjon, or dangerous

to persons or property engaged in commerce on such waters,

and for the loading, handling, and unloading of oil.

33 :;U. 8. C. § 407.

It shall not be law ful to throw, discharge, or deposit, or

cause, suffer, or procure to be thrown, discharged, or de

‘ posited either from or ont of any ship, barge, or other float-

ing craft of any kind, or from the shore, wharf, manufactur-

‘ing establishment, of mill of any kind, any refuse matter of

any kind or deasription whatever other than that flowing

from streets and sewers and passing therefrom in a liquid

state, into any navigable water of the United States, or into

any tributary of any navigable water from which the same

shall float or be washed into such navigable water; and it

shall not be lawful to deposit, or cause, suffer, or procure to

bed posited material of any kind in any place on the bank of

any navigable water, or on the bank of any tributary of. any

navigable-water, where the same shall be liable to be washed

' into such navigable water, either by ordinary or high tidé,.

or by storms or floods, or otherwise, whereby navigation

shall or may be impeded or obstructed: . . .”’

Office Supreme Go.r- '¢

ae BOP ec

JAN 4) Von,

, JAMES 8. BROWNING Cle

IN THE awe

Supreme Court of the United States -

- October Term, 1960.

No. 565.

AMERICAN DREDGING COMPANY,

Petitioner,

ee ee

‘ : ’

re ty ek ida os, fhe “ink. ate he. Sis Ath + eee Aah peittetd lene

GULF OIL CORPORATION, STANDARD OIL COMPANY,

ATLANTIC PIPE LINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTC REFIN-

ING CO., PIONEER OIL COMPANY and HERMAN S.

_ STOFFMAN. § and BENJAMIN STOFFM

Re spond nts.

On Writ of Certiorari to the United States Court of

‘Appeals for the Third Circuit.

BRIEF FOR RESPONDENT IN OPPOSITION.

Tuomas F. Mount,

Raw.e & HENDERSON,

1910 Packard Bldg.,

Philadelphia 2, Pa.,

Counsel for Resporwient? Thi

Atlantic Refring Company. ,

Ricnarp W. Pavmer, |

Roy W. Jorns, }

Of Counsel. ~. - EL =

International, 711 So. 50th Se. Phila. 43, Pa.

Page

Opinions BELow sats ub knhaddaumuw wees seen Cakes weenans l

Jurispiction PPT TUT TP CPT TTT TTT CCL T TET Tere Tee |

SUMUNNRN PURUENTUD ooo asce cases veccuccnscsccscencss 2

STATEMENT OF THE CASE ...........00.005 Laeeneereeawens 2

NE <tc bank onwensdsansaess ude hanes Rernces ances 4

I. No Conflict Exists Between the Decision of the Court

Below and Prior Decisions of This Court Holding

That Under the General Maritime Law One Joint

Tortfeasor May Not Obtain Contribution From An-

other Joint Tortfeasor in a Non-Collision’Case ...... +

II. No Conflict Exists Between the Decision of the Court

‘Below and the Prior Decisions of This Court Which

Have Consistently Held That One Party Is Not En-

‘titled to Indemnity From a Complete Stranger Where °

There Is No Underlying Express or Implied Con-

tractual Relationship Among Any of the Interests

SEs sara vas Gab eo eRe DERN vevasdankeeun ee re 7

I oo io 2 A a er ee ee 12

TABLE OF CASES CITED.

: Page

L. Boyer’s Sons Co., Petition of, 25 F. 2d 602 (C. A. 2) ...... 9

Brady v. Terminal Railroad Association, 303 U.S.10........ 10

Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 1922 ...2..11,12

Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 1918 Hegre: ll

Brown v. American-Hawaiian S. S. Co., 211 F. 2d 16 (C. A. 3) ‘

Cromady.v. S. S, Pieser, S58 U. S. 423 2... ccccccccceecess 8,9

George A. Fuller Co. v. Otis Elevator Co., ass U. S. 4D ....

Garrett v.. Moore-McCormack Co., 317 U. S. 239 .......... 12

Halcyon Lines v. Haenn Ship — and sana Corp., 342

8 SF = err eee mae 6,7

Hartford Accident & Indemnity Co. v. Gulf Refining Co., et al.,

230 F. 2d 346 (C. A. 5) 2. eee eee e cece cee ween eee 6

Kernan v. American Dredging Co., 355 U. S. 426, 1958 ...... 4&3:

Moore v. C. & Or. Co., 291 U. S. 205 ....... ecnacea pie i

O'Donnell v. Elgin J. & E. R. Co., 338 U. S. 384 2.2.2... 1

Pennsylvania Railroad Co. v. Sun Oil Co., 383 Pa. 537 ....... 9 .]

Pope & Talbot,, Inc. v. Hawn et al., 346 U.S. 406 ..... ice 1

Read v. United States, 201 F. 2d 758 (C. A. 3) ...... ae 8

Ryan ‘Stevedoring Co. v. Pan Atlantic S. S. Corp., 350 U. $

REE PINE ae A thf cS SOR Q

San Antonio & Arkansas Pass. Ry. Co. v. Wagner, 241 U

Peery: rie Ren pS See Perera eee, 1

Seas Shipping Co. v. Sieracki, 328 U. S. 85 ......0.....00.. ae

Standard Oil-v. Robins Dry Dock & Repair Co., 32 F. 2d 182

MVE UE ct etouteesaaveuessa a euenes 9

Urie v. Thompson, 337 U.S. 163 .......... 2.0.2 00ee Saat 10

_ Washington Gaslight Co. v. District of Columbia, 161 U.S. 316° 9

_ Waterman Steamship Corporation v. Dugan & McNamara, Inc.,

No. 34, October Term, -1960, decided November 21, 1960° 8,°

Wyerhaeuser S. S. Co. v. Nacirema Operating Co., Inc., 355

OB. BR OD vvivisccsessscvis siidbekeceeepnencses

~n”

2.—ewoww~

“

TABLE OF STATUTES AND AUTHORITIES CITED.

; : Page

| Benedict, Admiralty, 5 53-55 (6th Fd. 1940) cileuiwawienenaas 12

Judiciary Act of 1789, Section 9, 1 Stat. 76 (1789), as amended,

28 U. S. C. 1333 (Supp..1951) ........-.-. pcabeurd-ed aime 11

Title 28 U. S. Cade, Sectioris 1254(1) and 2101(c) ........ 1

S | IN THE

——— Court of the United States.

* OcroBER TERM, 1960. é

No. 565.

AMERICAN DREDGING COMPANY,

Petitioner, —

‘ ; i:

GULF OIL CORPORATION, STANDARD OIL COM-

PANY, ATLANTIC PIPE LINE COMPANY,

AMERICAN OIL COMPANY; TEXAS COMPANY,

ATLANTIC REFINING CO., PIONEER OIL COM-

PANY anp HERMAN S. STOFFMAN anv BEN-

JAMIN STOFFMAN, .

| Respondents.

—_———

. =

Ox Writ or Certiorarr To THE Unitep Srates Court or

APPEALS FoR THE THIRD Crecuir.

BRIEF IN OPPOSITION FOR RESPONDENT, _

THE ATLANTIC REFINING COMPANY.

OPINIONS BELOW.

" The opinion of the District Court is reported at 175 F.

Sup. 882 and the original opinion of the Court of Appeals

for the Third Circuit is reported at 282 F. 2d 73. The un-

reported amended. opinion after denial of rehearing was.

filed September 13, 1960 (Petitioner’s Appendix 8A-12A).

JURISDICTION.

The jurisdiction of this Court to review the original and

amended opinions of the Court of Appeals for the Third

Cireuit is provided by Sections 1254(1) and 2101(c) of

Title 28 U.S. Code.

2 | Brief -for Respendent in Opposition

QUESTION PRESENTED.. _

The only question presented is whether this libellant,

as a joint tortfeasor who has already been held liable by this _

Court for- personal injury and death claims, may in a non-

_eollision case obtain-under general maritime law (1) con-

tribution from another tortfeasor'or (2) indemnity from a

complete stranger in the absence of any express or implied

contractual relationship among any of the interests involved.

STATEMENT OF THE CASE.

/ - Petitioner’s libe was filed on January 5, 1959 to recover

by way of contribution and indemnity the personal injury

and death claim payments as well as property damage sus-

tained by its tug Antoun N. Herron as a result of a fire

which broke out on that tug on‘November 18, 1952 while it

was towing alongside certain scows in the Schuylkill River er,

Philadelphia.

Petitioner’s initial liability’ for the foregoing personal

injury, death claims and tug damage was determined by this

‘Court when its petition for exoneration and limitation of

liability. was denied (355 U. S. 426) reversing the Court

of Appeals (235 F. 2d 618) and also reversing the District -

- Court for the Eastern District of Pennsylvania (141 F. Sup.

_ 582).

This respondent, among others, filed peremptory ex-

ceptions to petitioner's libel in this case on the ground:that

as a joint tortfeasor American Dredging Company is not en-

‘ titled to contribution as a matter of general maritime law

from another alleged joint tortfeasor and on the further

ground that petitioner is not entitled to indemnity from any

of the respondents named herein since there is no underly-

ing express ‘or implied contractual relationship among any

of the interests involved out of which a right of indemnity

could arise.

& - 7

Brief for Respondent in Opposition - 3

The District Court sustained the exceptions (Peti-

‘tioner’s Appendix A, la-6a). The Court of Appeals for

the Third Circuit affirmed (Petitioner’s Appendix 7A).

In the District Caurt briefs and oral arguments prior

- to American’s Petition for: Rehearing, the personal injury

and death claims and the tug’s damages were properly

treated as a whole and without distinction. In-the Cireuit

Court this respondent specifically sppeeee any contribution

.for the tug’s damages.

As an afterthought following the decision of the Third

Cireuit, petitioner requested a rehearing which was denied.

However, it resulted in an amended opinion of the Court.

of Appeals which in effect stated that its first opinion ap-

_ plied only to the personal injury and death claims and was

not intended to include tug damage. The issue of the tug

damage was remanded to the District Court, for further

proceedings not inconsistent with its opinion, where re-

spondents’ exceptions will be heard again. The only dis-

sent was filed by Chief Judge Biggs although he was not one

of the members of the panel which heard the argument.

4 Brief for Respondent in Opposition

ARGUMENT. |

I. NO CONFLICT EXISTS BETWEEN THE DECISION |.

OF THE COURT BELOW AND PRIOR DECISIONS

OF THIS COURT HOLDING THAT UNDER THE

GENERAL MARITIME LAW ONE JOINT -TORT. |

FEASOR MAY NOT OBTAIN CONTRIBUTION FROM |

ANOTHER JOINT TORTFEASOR IN A NON- COLLI. |

SION CASE. |

In both the District and Circuit Courts, this petitioner

‘ has been rearguing the decision of the Supreme Court of

the United States in Kernan v. American Dredging Co., 35

U. S. 426, 1958 on the issue of American’s fault. In that

. case, this Court held petitioner liable to the personal injury

and death claimants for its statutory failure to have the

tug’s lights properly placed.

Petitioner’s argument that it can not be a tortfeasor -

for misplacing the lights was made at the first trial and on

the succeeding appeals of the Kernan case and has also been

repeatedly made in this litigation. But this contention is

no basis for granting the Writ requested. The Court below |

correctly applied this Court’s decision in the Kernan case

that petitioner was ‘‘at fault’’ and, as a matter of general

«a maritime law, this established its liability.

In the Kernan case this Court held:

“**The FELA and the Jones Act impose upon the _

employer the duty of paying damages when injury to ~

the worker is caused,-in whole or in part, by the em-

ployer’s fault. This fault may consist of a breach of the |

duty of care, analogous but by no means identical to the -

general common-law duty, or’a breach of some statutory

duty.’’ (p, 4382)

It is no longer a matter for argument, and certainly

no ground for Certiorari, that American is not at fault

Brief for Respondent in Opposition 5

merely because the regulation for the placing of lights upon

which its liability was based may have been initially pro- -

mulgated primarily to prevent collisions rather.than fires. |

Petitioner’s fault in the Kernan case resulted from a breach

of its duty to maintain the ArrHur N. Herron in seaworthy

condition and to avoid the creation of-conditions dangerous

to persons. and propyrty as well.

The Court below correctly: concluded that petitioner’s

liability, based on A statutory fault, was determined in the

Kernan case. Notwithstanding the. Kernan decision, peti-

tioner now seeks Certiorari to persuade this Court to allow

contribution in admiralty among joint tortfeasors.

‘In the Courts below, petitioner argued that the oil

companies were negligent on a Common Law basis. Now,

for the first time, petitioner argues that respondents’

alleged negligence was based on statutory violations. While

these distinctions may appear ingenious, they ar. ‘rrelevant

to the actual question presented by American’ s present

petition.

We deny that The Atlantic Refining Company con-

taminated the river. But if Atlantic owed a duty of care

_.to the ArrHur Herron to avoid creating a dangerous. con-

dition, certainly the owners of the ArtHur Herron owed

an equally important duty to the riparian owners not to,

operate an unseaworthy tug on the river and thus create

a condition hazardous-to persons and riparian property.

Petitioner’s argument that American was not a tort-

feasor in the usual sense and that,Gulf or Atlantic were

tortfeasors in the usual sense entirely overlooks its own

allegations that a dangerous condition was allegedly cre-

ated by the joint and concurrent tortious conduct of Amer-

_ leanpand the respondent oil companies.

The Evoexe F. Moran, 212 U. S. 466, cited by peti-

tioner on Page 5 of the Petition, contributes nothing to

clarify the question presented by its petition, but again is

merely a reargument of the Kernan case.

6 Brief for Respondent in Opposition: )

The Court below correctly held that any attempt by

one joint tortfeasor to obtain contribution in this, a non- }

collision case, from the other joint tortfeasor for damages

sustained fell within the prohibition of Halcyon Lines v. |

Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282,1952. *

This prohibition was correctly applied to petitioner’s per-

sonal injury and death claim payments for which it see sks

contribution and should have been applied to*the tug’s hull

damages, as the Court below originally ruled.

In the Halycon case, a ship ceiler sued the vessel for)

injuries sustained and the latter impleaded ‘the employer

of the injured man to obtain contribution. This Court, in

denying contribution between the vessel and the injure “d

man’s employer as joint tortfeasors held:

‘Where two vessels collide due to the fault of

both, it is established admiralty doctrine that the

mutual wrongdoers shall share eqially the damages

sustained by each, as well as personal injury and prop-

erty damage inflicted on innocent third parties. This

maritime rule is of aneient origin and has been applied _

in many cases, but this Court has never expressly ap-

plied it to non-collision cases. (p. 284) : :

‘*‘We have concluded that it would be unwise: to ©

attempt to fashion new judicial rulés of contribution

and that the solution of this‘ problem should await con-

gressional action.’’ (p. 285) °

In following the Halcyon case, the United States Su-

preme Court.denied a vessel owner any contribution from

a negligent stevedore in Pope & Talbot, Inc. v. Hawn ct al.

346 U.S. 406. See also Hartford Accident & Indemnity Co.

v. Gulf Refining Co. et al., 230 F. 2d 346, 354 (C. A. 5). o

The District Court in the instant case properly dis-

» posed of petitioner’s contentions on pages 5 and 6 of its

petition that the Halcyon case decision should not apply

Brief for Respondent in Opposition 7

- here because no longshoreman’s act was involved. There

the Court -pointed out that this Court’s language in the

Haleyon case was broad enough to go beyond. the unduly

restricted limitation urged. by appellant. The District

Court correctly held:*

‘‘True the Longshoremen’s and Harbor W orkers’

Compensation Act had special bearing on that case,

‘init the Supreme Court gave no indication that its

decision was limited to cases involving that statute. —

Rather, it was the stated view of the Court that in this

area of statutory Hability for maritime torts legisla-,

tive action rather than judicial imposition should de-

termine whether the incident of contribution is to be

recognized and, if so, whether equally or by degree of

fault among tortfeasors responsible for an injury.”’

(Petitioner’s App. 4a)

Petitioner’s claim for contribution for the personal

injury and death claim payments was properly denied under

prior decisions of this Court.

IT. NO CONFLICT EXISTS BETWEEN THE DECISION

OF THE COURT BELOW AND THE PRIOR DE-

CISIONS OF THIS COURT WHICH HAVE CON.

, SISTENTLY HELD THAT ONE PARTY IS NOT

_ ENTITLED TO INDEMNITY FROM A.COMPLETE

STRANGER WHERE THERE IS NO UNDERLYING

EXPRESS OR IMPLIED CONTRACTUAL RELA-

TIONSHIP AMONG ANY OF THE INTERESTS

INVOLVED.

There is no question that petitioner as a tug owner and

. the several respondent riparian land owfers are in fact and

in legal contemplation total strangers allegedly independ-

ently at fault. As the District Court properly pointed out,

the alleged fault on the one hand is in ‘‘causing oil to coat .

the river’? and on the other hand ‘‘in placing a lighted

lantern very near to the water’’ (Petitioner’s App. 5a).

8 Brief for Respondent in Opposition

The Court below correctly affirmed the District Court °

in applying the general maritime law ‘to this maritime tort

and properly held that there was no ‘relational basis and no

legal justification for imposing an indemnitor’s liability on

respondent (Petitioner’s App. 5a). .The wrongs of peti-

tioner and the alleged negligence of respondent: were plainly

concurrent causes which were simultaneously active in

allegedly inflicting injury. |

This Court has recently held that a asde contractual

relation must exist where indemnity is sought out of which

the right to indemnity ‘arises, although the absence of a

formal eontract between the indemnitor and indemnitee fs

not fatal to the indemnity cause of action.

In Waterman Steamship Corporation -v. Dugan &

McNamara, Inc., No. 35, October. Term, 1960, decided No-

vember 21; 1960, this Court clearly reaffirmed its position in

Crumady v. S. S. Fisser, 358 U. S. 423, where it was held:

‘‘We think this case is governed by the) principle

announced in the Ryan case. .The warranty\ which a

stevedore owes when he goes aboard a vessel to perform

serviees is plainly for the-benefit of the vessel Whether:

the vessel’s owners are parties to the contract gr not.

That is enough to bring the vessel into the zone of

modern law that recognizes rights in third-party bene:

ficiaries. Restatement, Law of Contracts, See. 133.

Moreover, as we said in the Ryan case, ‘competency and

safety of stowage are inescapable elements of the serv-

ice undertaken.’ 350 U.S. at 133.”’ (p. 428)

See also Wyerhaeuser S. S. Co. v. Nacirema Operatina (o..

Ine., 355 U.S. 563, 1958; Brown v. American-Hawaiian S. S.

Co., 211 F. 2d 16 (C. A. 3).; Read v. United States, 201 F. 2d

758, 763 (C. A. 3).

The foregoing cases establish that a party seeking in-

demnity from another, all of whom are complete strangers

with no underlying contractual relationship between any of

them, is ontside the scope of the —_ to indemnity.

_>---o-_

| - ’ + *

Brief for Respondent in Opposition 9

_ The instant case involved the concurrent fault of two

persons having no contractual or other special relationship

with each other nor with any other interest involved. .This |

does not establish a case for indemnity of one of those wrong-

doers against the other under the aes decisions of this

Court. °

Petitioner apparently relies op a statement in the case

of Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp... 350

U. S. 124; 133, as set forth on pages 6 and 7 of its petition

* _ eontending that this Court has not decided whether any non-

contractual right of indemnity exists. This contehtion over.

looks the principles of the Crumady and Waterman cases.

In an effort to prove a non-contractual right of indem.

nity, Petitioner erroneously relies on Standard Oil v. Robins

Dry Dock & Repair Co., 32 F. 2d 182 (C. A. 2) and Petition

of L. Boyer’s Sons Co., 25 F. 2d 602 (C. A. 2). The right

of indemnity in both of those eases arose out of an express

contract which is specifically referred to in each opinion.

Petitioner’s reference to Washington Gaslight Co. v.

District of Columbia, 161 U. S. 316, entirely overlooks the’

fact that the gas company’s liability to indemnify the Dis-

trict of Columbia arose out of the duties and powers in the

Distriet’ s charter to the company (see page 325). .

. George A. Fuller Co. v. Otis Elevator Co., 245 U.S. 489

cited on’ page 8 of petitioner’s brief is no support to peti

tioner’s argument for indemnity here. In that case the

. issue of Fuller’s right to indemnity arose out of Otis’ agree,

ment with theo — r of the building whose employée's negli-

- gence caused tl «cnjury. Fuller had. a contract with the

building’s owner. Even in Pennsylvania Railroad Co. v.

Sun Oil Co., 383 Pa. 537 , 542, cited on page 12 of petitioner's

brief, indemnity was denied; there was an absence of any

_ relation between the parties on which a contract of in-.

demnity could be shown or implied. ee

3 In the Court below, petitioner attempted to establish

that the riparian land owners were more negligent ‘than was

10 Brief for Respondent in Opposition

petitioner as the owner of an vnseaworthy tug. That effort

was unsuccessful since petitioner was placed in the awkwari

position of attempting to persuade the Court that the viola-

_ tion ofa statutory duty as to proper lights, was less serious

than the alleged negligence of respondent’s Common Law

duty of ordinary care. The Court below was.well aware of

this Court’s determination that the Herron’s liability for:

_ all injuries and deaths resulted from a fire ignited by the

tug’s lights which were locate? in violation of a Coast Guard

-. regulation for thé safety of personnel and’ property and that

‘this breach of a statutory duty was held to be the approxi- ,

mate cause of the fire. 355 U. S. 426, 431.

In the Artuur N. Herron, supra, p. 427, this Court

fully considered the heavy duty imposed on employers in

the railroad and shipping industries to provide adequately

for the safety of their employees while on the job.

The basie reason for statutory liability is that the duty. .

involved is regarded as of such great importance to the

publie as to warrant absolute liability for its bredeh regard. -

less of the extreme care used by the tortfeasor. This i is

negligence per se.

In Urie v. Thompson, 337 U. S. 163, 189, the Court

said:

“In this view the Safety Appliance Act, togitrer

with the Boiler Inspection Act, are substantively if

_ not in form amendments to the Federal Employers’

_ Liability Act. They dispense, for the purposes of em-

ployees* suits, with the necessity of proving that viola-

tions of the safety statutes constitute negligence; and

making proof of such violations is effective to show

negligence as a matter of law.’’ (p. 189) >

Also, in Brady v. Terminal Railroad A ssociation, 303°

U.S. 10, 15, the € ‘ourt stated:

“The statutory liability is not based upon the car-

rier’s negligence. The duty imposed is an absolute

Brief for Respondent in Opposition 11

one and the carrier is not excused by any showing oA

care, however assiduous.’’ (p. 15)

This philosophy, based on the statutory culpability of

such a breach, is well settled. See PS enseggie re. Elgin J. &.

' E.R. Co., 338 U. S. 384, 390-391; Moore _& Or. Co.,

_ 291 U.S. 205; San Antonio & Arkansas Pave Ry. Co,

Wagner, 241 U.S. 476,

On the application of the foregoing rule, American is

not less culpable than Atlantic or the other oil companies,

but may well be more so.

Petitioner’s argument for the application of the State

Law of Pennsylvania is entirely misconceived and was

rightly rejected below.

Admiralty borrows from state law only when it has

no.applicable rule, and not as here, where a well recognized

rule enunciated by the Supreme Court exists.

The Court below was correct in holding that it would

be improper for the admiralty court. to borrow.a state

contribution rule from Pennsylvania. As the Court below

properly ruled: ae, :

, ‘The considerations which keep admiralty courts

from fashioning’ their own rules of contribution, as ap-

plied in the Halcyon ease, equally restrain admiralty

from borrowing any state rule in similar cirewm-

stanees. Indeed, such borrowing would be merely a

particular way of doing that whieh ihe Maleyou case

disapproves generally.’’ (Appellant's App. 28a)

Furthermore, it is -vell settled that the genera! mari-

time law and not the loeai state law must be applied to all

substantive issues involved in a maritime controversy, re-

gardless of whether the forum is a court of admiralty, a

stale court under the ‘‘saving elause of Section 9 of the

Judiciary Act of 1789, 1 Stat. 76 (1789), as amended, 28

U.S. C. 1333 (Supp. 1951), ora federal court with diversity

jurisdiction. Chelentis v. Luckenbach S. S. Co., 247 UL S.

872, 382, 1918; Carlisle Packing Co. v. Sandanger, 259 U.S

12 Brief for Respondent in Opposition

295, 259, 1922; Garrett v. Moore-McCormac!: Co., 317 U.S.

239, 244-245; Seas Shipping Co. v. Sieracki, 328 U. S. 8%,

88-89 (footnote 5); 1 Benedict, Admiralty, 53-55 (6th Ed.

1940).

Accordingly, if this suit were pending in a ucieale

State Court, that Court would be obliged to réfuse contribu-

tion among joint tortfeasors, notw eemetne a state statute

providing for such contribution.

While the issue presented here was once of far reach-

ing impertance when it was first considered by this Court,

the rule has long since become well established... This peti-

tion presents no novel question of importance requiring the

attention of this Court. .

Inasmuch as the Court below has ruled that the Distriet

Court never passed on the question of the tug’s damages and

remanded that question to the District Court, no final con-

sideration of that issue has yet been made below. Accord:

ingly, it is premature for this Court to consider the appliea-_

tion of the rules of contribution and indemnity to any phase

of this case until all the items of petitioner's alleged dam

ages are before it.

CONCLUSION.

For the reasons stated in the opinion below, the decree

of the Court below insofar as it relates to personal injury

and death claims should be affirmed.

Respectfully submitted,

Tuomas F. Mount,

Rawie & HenpDERson,

Counsel for Respondent,

The Atlantic Refining Company.

Ricuarp W. Pater,

Roy W. Jouns,

Of Counsel.

spout of the United States

Oorosme Tuam, 1960.

™

No. 565.

AMERICAN DREDGING COMPANY,

ps vos Petitioner, —

agemst

GULF or CORPORATION, STANDARD OIL COMPANY,

ATLANTIC PIPELINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTIC REFIN-.

. ING 00., PIONEER OIL COMPANY, and HERMAN §8.

48 STOFFMAN and BENJAMIN, STOFFMAN,

Respondents.

i ‘

“oN PETITION yor 4A WRIT OF CERTIORARI TO THE UNITED

STATES couRT OF — FOR THE THIRD CIRCLE.

—

BRIEF FOR RESPONDENT, ESSO STANDARD OL

~ COMPANY, SUED HEREIN AS STANDARD OIL

gti - COMPANY, IN OPPOSITION.

Raymon T. Gurenr, ,

' Counsel for Respondent, Esso Stand.

ord Oi Company, -

; 120 Broadway,

New York 5, N. Y.

Dine. T. SwEENeRy,

' Of Counsel.

Pandick Press, Inc., 22 Thames St., New York 6, N. Y’.. U. 8, A.

INDEX TO BRIEF.

Questions Presented .......... ho dey 8s Sheesh bhance a NASR SAN

Statement ......... ae SE AE Ne REE asd AE an

Reasons for Denying the Writ.......... Ferra saanenets ta oagiete

. Conclusion eee Fake BASE edrts, hele tiae Nel a el Nt cat

Tasie or Cases CITED.

& ‘ . eye °

Halcyon Lines v. Haenn Ship Ceiling and Refitting

emrmpereeewms, DES Ti: Th, BOB ai cciisevncticece mvs ccnecesvescenccsvee

. Kernan v: American Dredging Company, 355 U.S. 426

Magnum Import Co. v. Coty, 262 U. S. 199............:...

_Statutes CIrtep.

Jones-Act, 46 UW. S.C. 688..ccccccccccccneccecccoccccccceccccceseccccee

Federal Employers’ Liability Act, 45 U. S.C. 51

Supreme Court of the United States

Ocroser Term, 1960.

AmegicaNn Drepoinc Company,

Petitioner,

against

GULF OIL CokporatTion, SFaNvARD Ow CoMPANY, ATLANTIC

Parr Line CoMPANY, Americas Om Company, Texas Com-

“pany, ATLANTIC REFINING Co., Pioxeer Om Company, and

Herman S. Storrman and’ Bensamin STorrMay,

- 2

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE,UNITED

STATES COURT UF APPEALS FOR THE THIRD CIRCUIT.

—— —

BRIEF FOR RESPONDENT, ESSO STANDARD. OIL

COMPANY, SUED HEREIN AS STAN DARD OIL

COMPANY, IN OPPOSIT ION.

Questions PRESENTED.

1. In the absence of a conflict of decisions and petttion-

er’s failure to demonstrate that the question presented is

of great importance to the public as distinguished from

the parties, has not the petitioner failed to gustain its

burden of establishing a basis. upon which toggrant cer-

tiorari?

2. Where a question has been partially decided and -par-

tially remanded by a Circuit Court of Appeals is it not:

premature for this Court to review the matter until such

time as the complete queation can be presented for its

consideration? °

STATEMENT.

American Dredging Company commeneed suit in the

United States District Court for the Eastern District of

Pennsylvania, alleging a-right to contribution and inden.

nity from this respondent and various other riparian land

owners along the Schuylkill River. Exceptions were filed .

to American sghibel and came on to be t 3 on April 30,

1959 before Judge Hastie who sustained the exceptions and

dismissed.the libel on July 22, 1959. Thereafter. American

appealed tothe Third Circuit Court of Appeals which

court after oral argument and submission of briefs affirmed

the District Court’s opinion. American then petitioned the

Cireuit Court for reargument and without oral argument

the petition was denied but the Court of Appeals amended

its former opinizn so as to affirm the District Court's

opinion in so far as Americaii’s claim for contributidn o

indemnity for personal injury. and death claims paid but

remanded the question of American’s claim for property

damage to its tug and loss of use. Subsequently on Decem-

ber 6, 1960 American petitioned - Court: for a-writ of

certiorari:

+ ©

Reasons ror Dexyine THE Wait.

1. The sole reason that petitioner offers for granting

its petition for writof certiorari is that the questions

presented are of far-reaching importance, and to this point

petitioner has alloted merely one paragraph of its brief

(p. 14). The remainder of petitioner’s brief is a reargu-

ment of issues which have already been considered on three

separate oceasions. It has been consistently held that cer-

tiorari was not intended to give the party defeated in the

court below another hearing, Magnum Import Co. v. Coty.

262 U. S. 159, 163. We submit that the several’ questions

presented by the instant case have been prev iously con.

sidered and passed upon by this Court and the lowe rr courts

in this case have uniformly? adhered to the established law.

American alleges at page 14 of its brief that ‘review by

this Court is necessary to determine tho full SvOpe of the

"meaning of this-Court’s decision in Kernan y. American

Dredging Company (355'U. S. 426) and Haleyon Lines x,

Haenn (342 U.S. 282)’, but fails to present any support

for its conélusion. We are not here concerned with the

Jones Act or the Federal Enaployers’ Liability Act as

American urges, but merely with liabilities between alleged

joint-tortfeasors who are legal strangers. This relationship

has been explored by this Court in the Waleyon case, supra,

and the law enunciated therein has been applied he ‘rein by

the lower courts, =

American attempts to lend authority to its argument

by citing the dissent of Judge Biggs to the Third, Circuit's

opinion on American’s petition for rehearing. With all

due respect to Judge Biggs ityuust be: pointed out that he

took no part in the original argument on the several ques-

tions presented. The original beneh which had the benetit

of considering the issues at the time the matter was first

presented to the Cireuit Court and of reading all briefs

and hearing all oral arguments, unaniinously concurred in

its opinion which is clearly in accord with existing law.

Petitioner has already received two appellate reviews

and offers no worthwhilé reason for the granting of this

petition, Having failed- to cite any contlict between the

decision in the instant ease and those in allied cases peti

tioner implicitly recognizes that the present case has not’

upset the uniformity of decisions on the point in question,

and no amount of strained semantics ‘an convert this matter

: into one wa ranting review by this C ourt on certiorari.

. &

€

* We therefore submif that “having failed_to sustain its

_ burden of establishing a basis upon which certiorari can be

i We American’ s petition “should be denied.

i gt American has erronedusly alleged at. page + of its

#, brief that the Ciréuit Court recognized its right to main-

“tain an: action. to recover for the damage to its property.

. _ As is clear from its opinion, page 8a of petitioner’s brief,

the Circuit. Court held that the trial court never passed

‘upon the question of damages to ‘American’ s tug and her

loss. of use, and remanded that question to the District

~ Court for furth@r proceedings. Respondent’s exceptions

to petitioner’ s libel have therefore still not been decide

- but are to be further: considered by the.trial court.

‘We submit that until sugh time’as thé exceptions herein

_have been completely decided, it would be premature for

this Court to consider the matter. Regardless who’is guc-

cessful before the District Court: when further proceedings

‘are had, that decision ,will be an inseparable part of the

question now being urged by petitioner on this ‘Court for

its decision, and the two matters should not be considered

piecemeal.

ConcLusION.

Fon the foregoing reasons it is respectfully submitted

that American’s site for Writ * Certiorari should be

denied. ;

Respectfully submitted,

Raymonp T. GREENE,

~ Counsel for’ Respondent, Esso Standard

Oil Company.

DanieL T. Sweeney, ,

Of Counsel. ~ aap

‘apes Cnt tl St

October Tem: 1960. . ~

é } |

| , No. ‘666.

¥ ~ 7 ; , es - :

AMERICAN ne COMPANY, ; *

#2 ‘ Petitioner,

v. 3 ;

GULP ON, CORPORATION, STANDARD OM. COMPANY,

’ ATLANTIC PIPE LINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTIC

_- ING CO, PIONEER OIL COMPANY and HE 8.

| a cle : speed

a a

be,

i eed ce? Philadelphia 9, Pennsyivania,

‘Proctors for Respondent, Gulf

< ‘ : 3 OR Cerporatiion,

( Taternstional, 711 Se. Sh Se, Phi GPa

INDEX:

Page

Reasons WHY THE Writ SHoutp Nor Be Grantep ....... 2

; Summary of Argument ’....... pst nn bess Sec ceveab enna 2

een ee er ree Sega ak lune eee eee 3

1. Petitioner ‘Has Failed to Comply With Rule

f _-23-1(c) and 23-4, So Its. Petition Should Be

ND 5.6 ss bannadapes'es petaskerdens cwenes 3

. A. Petitioner's “Questions'Presented” Is Not a

Proper Formulation of the’lssue or Issues

’ Involved in This Action and Gives No

Guidance to the Court as to What Ques- ~— «

* tion or Questions Petitioner Seeks to Have ;

PCC et, Perr re eee Tee ee 3

B. The.Petition Dues Not Set Out the Point’

Requiring Consideration Clearly, or Con-

MME. wats Cee cebueneks Uwauars er 4

‘II. The Holding of the Court of Appeals Does Not

Conflict With Any Decision of This Court atid

Does Not Rest on a Misconstruction, of Any

Such Decisiin easeaene Ragaeud oeeanees: 5

III. The Most Unusual Cjrcumstances of This Acci-

dent Make It Sui Generis, With the Result

That Whether or Not Petitioner Has a Cause:

of Action Is Not an Important Federal Question © 9

NE <o k6S nse KemeeaeneesieeiGseceleserisaees 10

TABLE OF CASES CITED.

American Dredging Co. v. Gulf Oil “P. 175 F.Supp. 882

ie D. Pa. 1999)" eeeod [vse wiennegee SURE e Res Syd oreds

Cir. 1960) ...... Fae ea, oe ane

Crumady v. The J. H. Fisser, 358 U.S. 423 (1959) .........

Halcyon Lines vy. Haenn Ship Ceiling & Refifting Cerp., 342

Se CO oe

* irvine v. California, 347 U.S. 128 fo ee (Oe ae

Kernan vy. American Dredging Co., 355 U. S. 426 (1958) .

Loca} ore United Bhd of Carpenters, AF L v. NLRB, 357

DB OR Hoo ov oskcks asst dcvesssa

ae aD Licorice Co. v. NLRB, 309 U.S. 350 (1940) Seeene

Petition of L. Boyer’s Sons Co., 25 F. 2d 602 (2d Cir. 192:

. Ryan Stevedoring Co. vy. Pan-; Atlantic . Ss Corp., 350 U s.

PO EMPOOD 58450 ba ccedSocknuseneee eee

Pave

5, a)

ra 1U

Standard. Oil Co. (N. J.) v. Robbins Dry + Dg & — aaMs

5 F. 2d 339 (S. D. N.Y. 1928) ooo ccccacecemecccets.

Standard Oil Co. (N. J. ) v. Robins Dry Dock & Repair Co., 32

F. 2d oe LP RIED xk ch vvdeuercscaxdeeectatee

Waterman S. 5. Corp. v. Dugan & McNamara, Inc., 81 S. Ct.

oe Le) pwek aes icteueabenab ac sigauln wl area: 7

Weyerhaeucer S. S. Co. v. Nacirema Operating Co., 355 U. S.

en COUR ve vain dndabeusancaves

STATUTES AND RULES CITED.

_ 28 U.S.C. § 1254 (1948), 43 Stat..936 (1925) ...... ihe |

Rule.23 of the Revised Rules of the Suprenie Court ot the

United States-........... FAR ebesSN SRNR RESeEeé ahEAS

IN THE -

Supreme Court of the United States.

Octoser Term, 1960.

AMERICAN DREDGING COMPANY,

Petitioner,

‘ Vv. R

GULF OIL CORPORATION, STANDARD OIL COM-

PANY,-ATLANTIC PIPE LINE COMPANY, AMER-

ICAN OLE COMPANY, TEXAS COMPANY, ATLAN-

TIC REFINING CO., PIONEER OIL COMPANY -

axp HERMAN S. STOFFMAN axp BENJAMIN

STUFFMAN, aie

: © Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI. :

To the Honorable, the Chief Justice and Associate Justices

Of the Supreme Court of the United States:

Respondent, Gulf Oil Corporation, respectfully prays

that the petition for a Writ of Certiorari to review the

final judgment of the United States Court of Appeals for

the Third Cireuit entered on September 16, 1960, be denie od.

~ .)

20° a. of Gulf Oil in Opposition

REASONS WHY THE WRIT SHOULD NOT

| BE GRANTED. .

‘ SUMMARY OF ARGUMEN zr.

1. Petitioner has failed ‘to comply with Rules 23-1ic)

and 23- 4, so its Petition should be denied.

a. Petitioner's “Question Presented’? is not a

proper formulation of the issue or issues involved in

this action and gives. no guidance to the Court as to»

what question or questions Petitioner seeks to have

reviewed.

b. The Pitition deve not set out the point’ re-

quiring consideration clearly « or concisely.

2. The holding of the Court of Appe: ils does not con-

flict with any decision of this Court and does not rest on a

misconstruction of any such decision.

3. The most unusual circumstances of this accident

make it sui generis, with the result that Whether or not

Petitioner has a cause of action | Is not an important federal

question. ; \ .

—

]

. Brief of Gulf Oil in Opposition: - a 2

: . |

ARGUMENT.

I. PETITIONER HAS FAILED TO COMPLY WITH

RULES 23-1({c) AND 23-4, an ITS PETITION SHOULD

BE DENIED.

A. . Petitioner’s “Questions Presented” Is Not a Proper

Formulation of the Issue or Issues Involved in This

Action and Gives No Guidance to the Court as to'

What Question or Questions Petitioner Seeks to

Have maviewed. . ; ‘

Rule 238- l(c) ‘of the Revised Rules of the Supreme

Court of the United Statés requires that-a Petition for

Writ of Certiorari set forth’ the questions presented for |

review. The purpose: of this :is to define and isolate the -

significant decisive issues which are involved in the par--

ticular action so that this Court may exerejse its Certiorari

discretion in a wise and fully informed fashion. ;

“When the mandatory, appellate. jurisdiction ,of this

ANourt with respect to review of federal decisions was nar- -

rowed and the discretionary, certiorari jurisdiction droad-

— ened by the Judges Bill of 1925, 28 U.S. C. $1254 (1948),

43 Stat. 936 (1925), the purpose was to, free this Court to

decide, where, appeal did not: lie, only questions of con-

siderable national sigtiBeance. If this Court is not in-:

formed with conciseness and accuracy of the question pre-

sented by a particular ease, it cannot. properly exercise its: °

discretion. . Needless to say iteis not tht responsibility of

this Court to study the Petition and decide itself what

‘issues may be presented. On the contrary, this. responsi-

bility rests firmly onthe Petitioner.

Moreover, this Court has repeatedly stated that once

having granted Certiorari, it will not consider quéstions

4 '. Brief of Gulf Qil in Opposition

which have not been raised: in the Petition. See, eg. Ly veal

1976, United Bhd of (" ~~ nters, AFL v. NLRB, 357 VS.

93, 96 °(1958), Freine v.. apne 347 UL S. 128, Ly 1

- (1954) and NV ational Licorice Co, . NLRB, 309 ELS. ath,

357 (1940). This is but a further pe aaa of the firm and

- sound policy to reguire litigants to’ state clearly and pre-

cisely what issues they wish to have reviewed.

Turning to the Petition in this action, Petitioner state

only that the question presented ‘is whether or not it has’

a. cause of action against respondents under. the circu

stances. There is no formulation of the- ‘legalcissues: which

may be determinative 6f this. question. ThiseCourt fnu-t

therefore turn to the lengthy argument and ‘attempt te

ferret out. the issues. Gulf. contends this is improper and

is sufficient reason, by itself, to withhold the Writ. a

‘B. The Petition Does Not Set Out the Points Requir.

ing Consideration Clearly or Concisely.

As has heen demonstrated above, Petitioner's “Oune S-

tions Presented”? are inadequate. In addition to this and

ugdoubtedly as a result of it, the Petition as a whole dovs

not clearly set out-or identify the points requiring consider:

ation by this Court. At one point the.igsue is stated as

_ being whether Petitioner has a cause of action. “See page 2

of the Petition. At another point, it is stated that the sole

question is whether in the maritime law, a right of indem- |

nityean exist in the absence of contract. See page 14 of

the ‘Petition. The thrust of that part of the Petition rin- :

ning ftom page 4 through page 11 sepms to be that in the

_maritime law such a right ‘of indemnity exists. But Peti- |

tioner states in the first paragraph of that part of his briefs" —

running from page 11 t# page 14 that there is a void in the

“maritime law.in thjs area whieh should be ‘filled’? by Penn-

sylv. ania law. The latter statement indicates that Petitioner

is not relying on his argument that the federal maritime

_ law gives him a cause of action. In short, it is not possible

to ascertain with any degree of certainty what the issues:

Brief of Gulf 4 in-Opposition - c oO

are Ww hich Pe titione rsecks to haue reviewe ry As weihave

“stated abeve,-it is not the responsibility ofthis, Court to,

ferret out the issues, A fortiori, it is not its re spansibility:

to guess What the issues are whieh the Petitioner wishes to

rely on. “‘Sinee the Petition does not present the points re-

quiring,consideration clearly and with .bre vitte it is viola-

tive of Rule 2 3-4. € onsequently the Writ shoul 1 he denied:

II. THE HOLDING OF THE COURT OF APPEALS DOES.

NOT CONFLICT WITH ANY DECISION OF THIS

-COURT AND DOES NOT REST ON A MISCON-

STRUCTION OF ANY SUCH DECISION.

The principal reason advanced by Petitioner why Cer-

tiorari should be granted, is that the Court of Appeals mis-

construed prior’ decisions of this Court, Before dem-

onstrating that the holdings of the Court below on the

questions before this Court were not in conflict with and do

not rest in misconstruetion of any decision of this Court,

it is necessary to isolate the question or questions which are

- presented here and the holdings with respect to them.-

First of all, as Petiti er correctly states, its claim for

damage to its tug is not before this ‘Court. Finding that. it

had not been presented to the District Court and therefore

Was not passed on by it, the Court of Appeals remanded

this aspeet of the action for further proceedings. American

Dre Aging Coa. x. Gulf Oil Corp., 282 Fl df 73 (3d Cir. 1960).

This issue is not ready for review because neither Court

below passed on it.

’ Nor is the question of Petitioner's right to contribution

from Respondents before this Court. Petitioner has dropped

this claim, evidently conceding the soundness of the reason-

‘ing of the lower courts. Seethat seetion of the Petition en-

titled,. ** The Questions Presented, Are of Far-Reaching

; Impertanee"’ , at page 14. :

Thus the single aspect of this action with respect to

Which Certiorari is sought is ag follows: Under maritime

6. Brief of Gulf Oil in Opposition

~ law, is a shipowner- whose fault was a eéneurrent eontrib-

uting ‘cause of the death of one of its seamen barred from

getting full indemnity, for payments madé in satisfaetion

of its Jones Act liability to its seaman, from a riparian

landowner whose alleged negligence was also a concurrent

contributing cahsé of the death? With respect to:this is-

sue, the Court of Appeals adopted per curiam the Opniion

of Cireuit Judge Hastie who was sitting as the District

Court in this case by speéial designation. American Dredq-

ing Co. v. Gulf Oil Corp, 282 F. 2d 73 (3d Cir. 1960). Since

the claim for contribution has been abandoned by Peti-

tioner, only that part of Judge Hastie’s decision which

deals with the question of indemnity need be considered

here. oS i | <a s

First of all, Judge Hastie held that this issue must be

decided in accordance with federal maritime law. Reason-

ing that since. ‘the obligation which libellant has satisfied

and respondents are now asked to share has béen defined

and imposed by the Supreme Court . .. . solely as a fed-

erally created right under the Jones Act,’’ he decided that

‘the attendant and incidental obligations in the nature of

rights against others are. derived, if at alli from the same:

souree.’’ american Dredging Co. v: Gulf Oil Corp., 175 F,

Supp. 882, 885 (E. D. Pa. 1959). .

_ + Petitioner does not cite any decision of this Court which

holds otherwise. Instead.he restates the arguments made

before and rejected by the lower courts to the effect that

state liw shounid be followed. It is not entirely’ clear

whether Petiticner argues that state law should govern or

whether the principles of state law should-be ineorparated

into féderal maritime law. “Whichever it may be is not

important because’ Judge Hastie was correct in his decision.

In addition to-the reasons given by him in his. opinion, it

should be pointed.out that this Court held in Haleyon Lines

wv. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282

(1952), that the question of whether or not a shipowner

could get contribution from the employer of a longshore-

we.

Brief of Gulf Oil in sOppostion” '* OQ?

‘6

mia indawed on its ship was gov erned -by federal maritime

law. Similarly, the question in the case at bar of whither

or not a shipowner ean get indemnity (which is nothing bit

one hundred per cent coutribution) from a party whose fault ;

combined with that of the shipowner to cause the death of |

one of the shipowner’s seamen, is governed by federal mari-

time law. To have held otherwise,.as Petitioner would have

hid the lower ¢ourts do, would be to have disrupted the

uniformity of the maritime law and opened the door to de-

teating the policies established by Congress. In short, |

Judge Hastie’s holding that maritime law governed Peti-

tioner’s right to indemnity did not conflict with any deei-

sion of this Court nor did it rest on a. misconstruction of

such a decision. . Instead it was in strict logical and prac- —

tical. conformity. with several such decisions.

‘With respect to the substantive issue before hi m, Tudge

Hastie held, citing Crumady v. The J. H. — r, 308 U.S

423 (1959) and Weyerhaeuser S. S. Co. vs Nacirema in:

erating Co., 355 U. S. 563 (1958), that “normally the right

to indemnity in the maritime law depends upon the ‘ex-

istence ofva legal relationship—in most cases a contractual

‘one--between indemnitor and indemnitee,’? -American

Dredging ‘Co. v. Gulf Oil Corp., 175 F. Supp. 882, 886

(E. D. Pa. 1959). Since Petitioner and Respondents. were

legally total strangers and’ no such relationship existed, ;

Judge Hastie denied indemnity. |

This holding is not in conflict with any decision of this

Court. In fact, it deals with a question which. was ‘ex-

prtssly left open in. Ryan Stevedoring Co... Inc. v. -Pan-

Atlantic S. S° Corp., 350 U. S. 124, 133 (1956). Moreover,

the holding is consistent with and rests on a sound appli-

cation of the principles set, out in the Ruan, Weyerhaeuser .

and Crumady cases, and in Waterman 8S. S. Corp. v. Dugan

& Me Namara, Inc., 81 S. Ct. 200 (1960). In each of these

decisions, this ‘Court was é¢areful to emphasize- that. the

hasis for indemnity was the breach by the indemnitor of a

contractual duty to the indemnitee. For instance, in

atte

8 _ Brief of Gulf Oil in Opposition

Waterman the stevedore had been engaged by the consignes

of the cargo. When the shipowner sued for indemnity

with respect to amounts paid to a longshoreman injured’

by the stevedore’s negligence, this Court allowed recovery

on the basis that the owner, as well as the ship, was a third

party beneficiary of the stevedore’s w ‘arranty of workman-

like service? ‘Absent such an. independent undertaking.

there is no reason’ in. justice why one defaulting party

should be able to shift the entire loss: -toanother defaulting

party. Therefore, the logical implication of these four

decisions is, as ig Hastie held, that there is no ie

to indemnity in. the absence of an established lex v

re lationship. *. 2

There is, one’ final, point in Judge Hastie’ S opinion

which must ‘he mentioned because of: the great weight placed :

on it by the Petitioner. Judge Hastie wrote:

It is not necessary to reach the question, left open

hy the Supreme Court uf Ryan Stevedoring Coa. Pan.

Atlantic S. S. Co., 1956¢ 350.0. S. 124, whether absent

“any relationship between those responsible for mari

time torts, admiralty will-employ those concepts of

“primary”? or ‘‘activ’? fault as distinguished from -

“secondary”? or “passive”? fault as a basis for impos:

ing an obligation to indemnity. For here the statutory

wepng of libellant and the common law negligence of

respondents were plainly: concurring causes simul:

taneously active and apie in inflicting injury.

American Dre dging Co. v. Gulf Oil Corp., be F.Supp.

882, 886 (KE. D. Pa. 1959).

Petitjoner’ s argument is apparently that this Tests

on.a misconstruction of this Court, s decision in Kernan ?.

American Dredging Co., 355 U. 8. $26 (1958). First of all.

it is clear that this Court did not pass upon American

Dredging Company’s rights against third parties in that

decision, , second, there.@s no language in that decision

which would serve as authority for bringing the question-

Brief of Gulf Oil in Opposition 9

able doctrine of active and passive fault into the matitime

law. But even-if there were, Petitioner's fault here was.as

active and primary a cause of-the fire here involved as

was the swift kick of Mrs. O'Leary’s cow. of thee Great

Fire in Chieago in 1871. Onee again, there hag. been no

conthet with-or misconstruction of prior deciaig of this

court in the decision of the lower court.

III. THE MOST UNUSUAL CIRCUMSTANCES OF THIS

ACCIDENT MAKE IT SUI GENERIS, WITH THE

RESULT THAT WHETHER OR NOT PETITIONER

HAS A CAUSE OF ACTION IS NOT AN IMPOR.

TANT FEDERAL QUESTION.

The fire which gave rise to this action was daused, in

Judge Hastte’s words, by ‘‘the unhappy conjunction of

fault on the one side in causing oil to coat. the river and

“on the other i in placing a lighted lantern:very near to the

water.’’ . There was no legal or contractual relatignship

between Aimetioan Dredging Company and the Respondents.

The only basis on which Petitioner seeks indemnity is that

Respondents owned the riparian land opposite which the

‘fire took place. Gulf contends that the’ questions -pre-

sented by this case are so unusual and rare in occurrenge

that they do not warrant the time and thought of this

(ourt pursuant to its Certiorari jurisdiction.

In almost all of the situations: where the fault of a

‘third party concurs with the fault of a shipowner to produce

injuries to one of its seamen for which recovery is had.

under thé Jones Aet, there will be a contractnal relation-:

ap ost: iblishing the obligations of the two wrongdoers.

Whether the ship is alongside a pier, being fueled, loaded

or unloaded, repaired or refitted, there is an agreement be-«

tween the owner and the third party which sets out ie

‘rights and responsibilities of ‘the two parties. For in--

_ stance, in Standard Oil Co. (N. J.) v. Robins Dry Dock &

Re pair Co,, 32 F, 2d 182°(2d Cir. 1929), the defendant was

10 Brief of Gulf Oil in Opposition .

repairing the ship under a-contract which provided that it

would fully protect the vessel and the owners from claims

for personal injury. See Standard Oil Co. (N. J.) v. hyd

bins Dry Dock & Repair Co., 25 F. 2d 339 (S. D. N.Y.

1928). And in Petition of L. Boyer’s Sons Co., 25 4 a1

602 (2d Cir. 1928), the court held that the prospective in-

demnitor had contracted to provide safe access to the

» lighter, and having failed to do 80, was obliged to indemnify.

Furthermore, in the numerous cags which this Court

has recently decided in this area such as Ryan, Weyr:

haeuser, Crumady, and Waterman, the contractual obliga- |

tions of the indemnitor were the basis on which indemnity

was imposed. Petitioner’s failure to cite a single maritime

case where there was not a contractual relationship be-

tween the prospective indemnitor and indemnitee is one

more indication of the unique nature of the case at bar.

In short then, it is‘rare that-the prospective indemnitor

and indemnitee stand as total strangers. The Faestion of

whether Petitioner has a cause of action against Respond.

ents under the most unusual circumstances of the present

action, while of some importance to the -parties, hax no

national significance and does not present an import: int

federal question.

CONCLUSION.

The Potition does not properly present the questions

which Petitioner seeks to have reviewed, as required by

Rule 23. The decision of the lower court does not conflict

with or rest on a misconstruction of any decision of this

Court. On the contrary it is logically and practically con-

sistent With several recent decisions. Finally, the fact> -

and cireumstances of this accident are so unusual that the

case does not present any important federal questions f for

review.

Brief of Gulf Oil in Opposition 7

For the foregoing reasons, it is respectfully submitted

the case-does: not merif review by this Court, and the Pe ‘ti-,

tion for a’ Writ of Certiorari should be denied.

Respectfully submitted,

_ Tuomsoy F. Epwanps,

Joun T. Crary;

Francis A. ‘O'Hara,

Joun B. Haxxem, 3ep,

Joun C. Keene,

Proctors for Responde nt Gulf

. Oil Corporation.

FILED

JAN 95 108)

TF LE CO PY : Otfice- Supreme Court, U.S.

| a AWTER NS

oa : 7 :

V4 Clerk

: | - ; , \ . ;

Supreme Court of the United States

—Octoner Trea Tow

No. 565.

AMERICAN DREDGING COMPANY,

’, fitioner,

P °

} ° =e against ‘

GULF OLL CORPORATION, STANDARD OTL COMPANY,

ATLANTIC PIPE LINE COMPANY, AMERTOAN OL,

COMPANY, TEXAS COMPANY, ATLANTIC REPRIN-

ING COL, PIONKER OFL COMPANY, and TERAMAN S.

STORPMAN and BEN-EAMIN STORE ALAN,

cae - ° ig Spoons nts, P

ON PETITION POR A WQIT OF CERTIORLRL TO THE UNITED

STATES COURT OF ARPEALS FOR THE THIRD CIRCULT,

BRIEF FOR RESPONDENT, TEXACO, INC:, :

- . SUED HEREIN AS TEXAS COMPANY, |

ee IN OPPOSITION. a

Jospri Mo Presi. *

Cones U for Ri spoons nt, Te releen, fine

OH) Broadwas,

New York # New York

INDEX TO BRIEF. °

. PAGE

Ortstoxs Betow ..............:........... SUSE Rye PE A 1

JURISDICTION -2...seg:eeseieeeee sisaaaiisuipeblecsutucn aiciaanestiad 2

QrEsTIONS PRESENTED 200 ooo ccccoceeeeeee sddsmncnsecnasanidin 2

STATEMENT o...cccsccccscceceeee silences ae aiiesianbscariannsiieoeilll 2.

Reasons For DENYING THE SRE SEMA. Scone 5

| eee icsetnenivee i Pre ROE. SAO 7

TaBLe or Cases Crrep.

Hate yon Lines v. Haenn Ship Ceiling and Refitting

Corporation, 342 U. S. 282...:.................... 5, 6.

ae v. Americ an Dredging Company, 355 U.S.

Statutes Crrep.

Jones Act, 46 U. S.C. 688... eee Sa 5"

Federal Employers’ Liability Act, 45 U.S. C. S21... 5

: - Index to » Appendix.

pe NN eet ee oo ee eae A-l

Avpeyorx B—Exceptions to Libel............ compoerguenenin ceconee, * Bel

‘Supreme Court of tthe United States

OcTOBER Term, 1960.

No. 565.

AMERICAN Drepainc CoMPaNy,

7 Petitioner,

against ;

Gcir.Om Corvoration, Staxparp Ort, Compaxy, ATLANTIC

Pipe Lixe Company, AMERICAN Ot, Company, Texas Com-

pany, AtLantic ReFininc Co., Pioneer Or Compasy, and

Herman S. StorrmMan and Bensamin STOFFMAN, |

Respondents.

‘ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. |.

BRIEF FOR RESPONDENT, TEXACO, INC.,

» SUED HEREIN AS TEXAS COMPANY,

IN OPPOSITION.

_ Opinions Below.

The opinion of the District Court is reported at 175 F.

Supp. 882, and the original opinion of the Cowrt of Appeals

for the Third Circuit is reported at 282 F. 2d 73. The

e) » a .?

unrepomed amended opinion after denial of rehearing -was

., filed September 13, 1960 (Petitioner's Appendix 8a-19a).

Jurisdictiom

The jurisdiction of this Court to. review the original

_ and amended opinions of the Court. of Appeals for the

Third Circuit is provided by Sections any and sortie)

of Title 28 U. S. Code.

Questions Presented.

1. Whether the adjudication of petitioner's * liability b hy

this court in Kernan v. American Dredging Company, :

U. S. 426 (1958) precludes it from claiming inne. i

and indemnity for jts losses under the’ general maritime

law from. stranger riparian landowners Who. allegedly

- spilled the Volatile substances that> were ignited by the

petitioner

2.. Whether the fact that the fire eonnnnia on the Schuyl-

kill River. and all parties to the litigation are residents of

Pennsylvania justifies an exception, to the general maritime

law’on the ground that the matter is only of local concern.

Statement.

_ On the night’ of Risciities 18, 1952, as ‘petitioner’ s tug

Arthur N. Herron, with a dump scow in tow, alongside,

was procecding down the Schuylkill River in the vieini! V

of the Guif Oil Dock and Refinery, Philadelphia, Pennsyl-

vania, the surface of the river suddenly burst into flames

that enveloped the tug and tow, set them afire, and resulted:

in damage thereto and the'death and i injury of certain crew

members. ‘

The petitioner, the owner of the tug and scoy, filed a_

petition for: exoneration or limitation ‘of its liability with

ryt.

_ to the different elements comprising its damage claim.

respect to the injury and death claims. That proceeding

"resulted in-its being-held liable by this court in the opinion

reported in Aernan ve dmerican Dredging Company, 330

U.S. 426 (Meb. 195s). |

Petitioner did not take any steps to recover for the

damage to its tug and scow-nor did it.sue or attempt to

uuplead the respondents in the proceedings involving the

— death and i injury claims. ;

About one. year after the decision’ vf this court in the

Kernan case, in January, 1959, the petitioner tiled a libel

in ‘the Kastern “District of Pennsylvatiia (Appendix <A)

against the respondents as ‘towners ad occupiers of land’?

(libel Art, 14) along the Schuylkill River alleging that each

of the respondents neghizently permitted petroleum or other

volatile products to be de ‘posited bn the surface of the river

- which. were ignited «by petitioner) and caused damage

_, alleged j in the libel, Article 19°of which follows: ;

“Tn addition to the damage to its tug, the. loss

of use thereof, the settlements it has made and the

judgments which it has paid or which it may become’

liable to pay, the Libellant herein ‘has paid and

- Ineurred large sums for investigation and defense of »

* the claims which have béen made against it by the

persons injured on its tug and by the Administrators

of the Estates of its two employes who were killed

at the time of the said fire and who prosecuted claims

» Against the Libellaut under the Provi isions of the

Jones Act.”” , , >

The respondents separately filed exceptions to the libel.

The exceptions of this respondent are annexed- ( Appendix

B). Exceptions of all respondents were argued the same

day, and briefs were also submitted to the district court.

On the argument and in the: briefs no specific distinction

or reference was made, as petitioner subsequently has done,

. 2

‘--

- Judge Hastie, sitting i in the district court by special

designation, in an opinion reported in 175 F. Supp. ss2-

(also petitioner’s Appendix la to 6a), correctly answered

all of petitioner’s arguments, reiterated in the Court of

Appeals and in its petition to this court for certiorari, and -

dismissed the libel with the concluding observation that:

‘‘For here the statutory wrong of the libellant

and the common law negligence of respondents were

plainly concurring causes, simultaneously active an’!

effective in inflicting injury.”’

The petitioner appealed and the decision of the distrie

judge was affirmed by the U. S. Court of Appeals for .

Third Circuit in a per curiam opinion reported at 282 F. 2

73. Thereafter ina petition for rehearing of the ease before

the Court of Appeals en banc, the libellant repeated arsu-

ments prev iously made and emphasized that its claim fer

damage to its tug and scow had been overlooked by the

district court and dismissed sub silentio.

The Court of Appeals denied the petition for rehearing

‘but ordered an amendtnent of its prior opinion stating:

‘The argument in this case on exeeptions to the

libel covered just the deaths and personal injuries

arising out of the accident above described and for

which appellant has been held responsible. There.

was no attempted distinction suggested betweén the

personal injury phase and damage to appellant’s tu.

Indeed the latter was not even mentioned.

* ® e * . .

“As a result the court. decided. Gnly the contro-

versy which had been argued to it.

- @ e - o Fen i: * e

‘*As we read the district court opinion we think

it clear that, because of the manner in which the

exceptions to the libel were argued, the questions in .

Eb Dt ue eo

connection with the property damage to the tug-and

loss of its use were never fairly presented to. the

trial court and never passed upon.

. ,“*The judgment of the: district court will be

affirmed as to its denial of contribution or indemnity

to appellant by appellees arising out of the death

and personal injury claims in this matter. As to the

property damage to the tug and loss of its use claims,

the judgment of the district court will be vacated and

that part of the case’ remanded for proceedings-as———

may be indicated, not inconsistent with thi — -aion.’’

(Pétitioner’s Appendix 8a and Ja).

Reasons for Denying the Writ.

The petitioner's statement that the questions presented

are of far reaching importance fs nyt supported by the

petition or record. Repeating the argument made both in

the distriet court and the Court of Appeals, the petitioner

continues to contend that it is not-a tortfeasor ‘*in the. usual

sense”? but that the respondents are tortfeasors “in the

‘usual sense’? (p. 5 of the petition), a distinction it is urged,

that justifies an exception to the application of the general

admiralty rule that there is no contribution between tart.

feasors except in collision eases. “Maleyon Lines vy. Haenn

Ship Ceiling and Rejitting Corporation, o42 U. S. 282

(192). —

The petitioner argues that although it might have heen

4 tortfeasor as to its injured and deceased crew members,

it Was only a technical wrongdoer under the F. E. L. A. and

Jones Acts. It urges further that neither act governs the

relationships of American vis @ ris Gulf and the other -

‘respondents, omitting any reference to the observation of the

district court that the statutory wrong of the petitioner

aud the alleged negligence of the respondents were plainly

» 6

concurring causes of the fire that resulted in petitioner's

damage. ‘o a

» Inits libel petitioner alleged that the respondents negli-

gently spilled oil or other volatile substances. As this court

pointed out in its previous opinion (300 U.S. 426), the trial

court found that the fire was ignited b¥* an open tlane

kerosene lamp carried on the deck of petitioner's scow aud

that if the light had been carried as required by law the fire

would not have occurred, 355 UsS. 426, 4238., |

‘Petitioner asserts that a review is necessary to determine

the full scope of the meaning of this court’s decisions in

Kernan v. American Dredging Company and Halcyon Lives

v. Haenn when what it really means is that it is unhappy

with the import and application of the clear language of

those degisions. i i

- No conflict is shown to exist between the deqision of the

court below and prior decisions of this court.

‘In one breath the petitioner makes the statement that the

matter is of far reaching importance in Maritime Law ().

14) and in another (pp. 11, 12, 13) it asks for an exceptiol

in this case to the general maritime rule of Haleyon, v.

Haenn because the matter‘is only ef loeal significance and it

should have the benefit of an alleged more favorable Penn-

sylvania Rule. |

The cases relied upon by petitioner involve contract

relationships express or implied. In.this ease the peti-

tioner and respondents are total strangei's, alleged concur:

~FEut wrongdvers, The decisions below of both courts were

therefore correct. |

> Finally it is submitted that the petition tor certiorari is

premature. The Court of Appeals as remanded to the

district: court.that part of the case involving the claim tor

petitioner's property loss for clarification of its decision

with respect to those items of damage. No separation of

; :

distinction Was made as to,the yarious itenrs of petitioner's ¢

damages. The exceptions were general (Appendix B), and -

the briet's and arguinents made no point of special or sep-

arate rules as to the hull, injury or other elements of the

damage as alleged in the libel. We are confident that the

district eourt will clarify its opinien, if need Be, when the

respondents® exceptions are brought on for argument again.

Until this confusion is settled and a specifie ruling is made

‘With respect to the,property damage items we respectfully

request that the application for certiorari be denied.

- Conclusion.

For the foregoing reasons it is respectfully submitted

that the petition for certiorari should be denied.

‘Respectfully submitted,

ria Josep M. Brvss,

Counsel for Respondent, Texaco, Ine.

A-1

APPENDIX A.

UNITED STATES DISTRICT COURT

For Tue Eastern District or PENNSYLVANIA

~ American Dreporne Co.,

>».

vs.

_ Gute.Onm Corporation, Sraxparp On.

Company, AtLantic “ Pree Live \) No. %of 1959

Compaxy, Amepican Or Company, ( ™Ad™ralty

Texas Company, ATLANTIC REFINING

Co., Pjoneer Ow Compansy, and |

Herma S. Storrman & Benxsamin

STOFFMAN, 4

Libel.

_ The Libel of ‘American Dredging Company against Gulf

OC orporation, Standard Oil Company, Atlantie Pipe Line

Company, American Oi) Company, Texad, Company,

“Atlantic Refining Co., Pioneer Oil Company and Herman 8.

Stoffman & Benjamin Stoffman, respectfully alleges, upon

information and belief, as follows: :

1. The-Libellant is a corporation, organized and exist-

ing under the laws of the State of Pennsylvania and has its

- . Principal office. and place of dusiness at 12 S. 12th Street,

- Philadelphia.

‘

2. Gulf Oi? Corporation is a corporation having an office

and-place of business within this District. The Libellant

avers, upon information and he lief, that it is a corporation

organized and existing under the laws of the<State of-

Pennsylvania. — | '

3. Standard Oil Company is a corporation having an

office and place of business in this Distriet. The Libellant

avers, upon information and belief, that it is a corporation

organized and existing under the laws of the State of New

Jersey: ;

4. Atlantie Pipe Line Company is a Corporation having :

an office and place of business. within this District. The

Libellant, avers, upon information and ‘belief, that it is a

corporation organized and existing under the Laws of the

State of Pennsylvania. .

5. American Oil Company is a corporation having an

office and place of business within this district and upon

information and beliéf, the Libellant avers that it is organ-

ized under the Laws of the State of Maryland..

6. Heaman S. Stoffman and Benjamin Stoffman: are,

upon information and belief, partners trading as Pioneer

‘ Oil Company and have an office and place of business within

this district. ,

7. The Texas Company is.a corporation having an

office and place of business within this Distriet and upon

information and belief, the Libellant avers that it is ineor-

porated under the Laws of the State of Delaware.

a ‘ :

8. Atlantic Refining Company is a corporation that has

an office and place of, business within thisPistriet and upon

information and belief, the Libellant avers that it is incor-

porated under the Laws of the State of Pennsylvania.

9. On or about November 18, 1952, the the Arthur M.

Heron and certain scows owned by the Libellant were pre

ceeding down stream on the Schuylkill River at a point above

the Penrose Ferry Bridge, within this district. As the flotilla

whs proceeding, the surface of the Schuylkill River suddenly

burst into flames and as a result thereof, two members of

‘the crew, Arthur EK. Milan and Donald Worrell, lost their

lives, several members of the crew of the tug sustained

personal injuries, the tng Arthur M. Heron was seriously

and severely damaged and the Libellant was deprived of the

A-3

~~,

use of the said tug that was nevessary in conducting the

tiormal business operations of the Libellant. The Libellant ,

avers upon information and belief, that the fire up on the

surface of the river was due to the accumulation upon the

water of volatile petroleum or similar products ‘which had

heen deposited thereon by reason of the negligence ot one

or more or all of the respondents herein. .

10. On May 11, 1953, the Libellant American Dredging

Co. filed a petition for exoneration from or limitation of

liability in this ¢ourt which action is docketed as No. 137

of 1953 in admiralty. . 3

11. Thereafter the petition ‘for limitation of Aliability

proceeded to trial and on January 19,1956, this Honorable

Court (Kirkpatrick, J.) filed an opinion and on February

15, 1956 entered a final decree exonerating American Dredg-

ing Company from all liability. Thereafter that decision

was appealed to the U.S. Court of Appeals for the Third

Cireult and was affirmed in an opinion filed by that Court on

July 5.1956. Thereafter a petition for a Writ of Cortiorari

was filed in the Supreme Court of the United States and

on February 8, 1958; thie judgment exonerating American

Dredging Company was reversed and thé matter remanded

to this Court for further proceedings consistent with the

opinion of the Supreme Court.

12. Thereafter this honorable eourt conducted such

fyrther proceedings ‘and entered judgment, against Amer-

ican Dredging Company in the sum of $37,500.00 in favor

of William J. Kernan, Administrator of the Estate of

Arthur FE. Milan, Deceased,.and in the sum of $90,000.00

in favor of JohmJ. Meéchan, Administrator of the Estate

of Donald M. Worrell, Deceased and American Dredging

Company settled the claim of Fxancis J. Harrington for

thessum of $1,750.00 aid the’ claim of John W. McGinley

for the sum of $750.00, ; ae

13. Thereafter American Dredging Company paid the

judgment in favor of John J. Meehan, ete..and William J.

A-A ed

Kernan ete. has filed an rom? to the United States Court

of Appeals for the Third Circuit Court from the judgment

in his favor entered by this court, which appeal is stiil

pending: -

14. The respondents, Gulf, Standard, Atlantie Pipe

Line, Atlantie’ Reffning, American and Pioneer are- all

owners and occupiers ot-land along the banks of the Schuyl-

kill River in the vicinity of the fire which caused the di: image

referred to herein,

- 15., The respondent, Texas, is the owtier and operator

of the tank vessel Washington which, at all times material

hereto, was docked in the Schuylkill River ‘and alicve. the

point of ‘the fire at:the plant of the respondent Afluntic.

The Libellant is informed, believes and therefore avers.

that the Washiugton was carrying petroleum products and

that prior to its arrival at the port of ‘Philadelphia, the

Washington had been in collision at sea and had sustained

damage.

16. The Libellant avers as to- yuan Texas that

it negligently ‘permitted petroleum products to be deposited

upon the surface of thé Schuylkill River which petroleum

products either alone or in combination with other petrol

etm of similar. volatile produets were floating nper the

surface of the river and became ignited causing the damage.

loss of lives and personal injuries herein before referred to.

17. As tothe respondents Guif, Standard, Atlantic Pine

Line, Atlantic Refining, American and Pioneer, the Libel-

lant avers that they own various parcels of land along the

Schuylkill River and in the vieinity of the said fire, uper |

which they conduct the refinifig, storage and een

of petroleum products and that each of them was“negliy:

in causing or permitting the escape of petroleum or similar

volatile products and permitting them to be deposited upe

the surface of the river Where, alone or in Gombination with

petroleum products deposited by others, there was formed

4 . : ” a

. A5 ;

on the Sallis of the river an ared of volatile materials,

which were ignited and’ caused the damae refe rred to.

he rein.

18. The Libellant is advised, believes anel therefore

avers that each of the respondents was negligent in that

after having initially been iegligent in causing or pe rmitting

the volitile petfoleum or similar produc ts to escape and be

deposited) ipon “the stirface of the river . thy negligently

rail «i to warn persons using the said river for the purpose ™

of navigation of the er: ave daneer whiel: hr id been created

hy the deposit thereon of volatile materials when they and |

-oach/of them knew or should have known that the’ river

would be used for navigation and that the presence of the

volatile materials constituted a. grave danger and an

unnevessary risk of harm to persons using the said river

for purposes of navigation. —

19. .In addition to the damage to its tug, the loss of use

thereof, the settlements it has made and the’ judgments

whieh it has paid or which it may become liable te pay,

“the Libellant herein’ has’ paidtand ineurred large sums for

investigation and. alefense of the claims which have. heen

made against it by the persoms injured on its tue and by the

*‘Xdministrators of the Estates of its two employes whe

were killed at the time of the said fire and whe proseented

claims against the Lihe lant uhbder the Provisions. of Te,

Jones Act.

i -< ao

2. The Libeilant has not he en guilty of unnecessary

delay in instituting the within action for the reason that

even now the final amount of its loss has not been aseer-

tained by reason.of the pendeney of the litivation herein

referred te nnd the respondent. breve: not been preimdiced by

reason of any delay in-that all respondents be id knowledge

of the fire at the time jt ecenrred, the evidence is largely

documentary and ‘or ‘physical facets and the respondents

Gnuify Texas and Standard were advised Fi noties te their

underwriters in 1956 that if American Dredging Company

. | A-6

were held liable for the claims for death and ‘personal

injury, actions against them would be, instituted by the

vv ihellant herein,

a\y nererore the T: ibellant prays that:

~ fa) Preeess in dane forfn of law shall issue against the

respondents and each of them citing them to appear and

answer the allegations of this libel. t

(b) That this honorable court shall enter judgment for

the Libellant for the sum of $250,000 against the respond-

ents or for such sum as this Honorable Court shall find may

he due the Libellant by reason of the premises.

and further relief as may seem just to it in the premises.

Krvseyn, Evans & Sraw

ee Se er ee eee Cee

4 as. Counsel - Libellant.

Bel

APPENDIX B.

re \

- = IN THE

UNITED STATES DISTRICT COURT

’ For tue Bastrern Disrricr or PENNSYLVANIA

_ American Dreperxe Co., t J

Libellant

against

Geir Ou. Corporation, Stanparp Orn

Company, AtLantic Pipe Lixe Com- \" wo 9 of 1959

pany, AMERICAN Ou, Company, TEXAS / in Admiralty

Company, Atuantic Rerixixna Co.,

-Proxeek Ow, Company and Herman

S. StorrMan and Bensamin Storr-

MAN,

Respondents.

. {

The Texas Company, one af the respondents herein,

hereby excepts to the libel herein upon the following

grounds: — ,

1. That the facts averred in the libel are not sufficient

to constitute a cause of action.

2. That the facts averred in the libel-do not constitute

a canse of action within the Admiralty and Maritime tur-_

isdiction of this court.

3. As alleged in articles 11 through 13 of the libel,

libellant has already: been found by the Supreme Court of

the Tnjted States of America to have been negligent and

liable for the damages alleged in the libel, accordingly the

B-2

libellant adjudicated tort feasor has no cause of action in

admiralty for contribution or indemnity against the respon-

dent, The Texas Company. ee

4. That the libellant’s claim is barred by laches.

O'NEILL & Russet, ;

Pyne, Brusu, Smita & MICHELsEN,

By: WriuaM P. O’NeEn1,

Proctors fot. Respondent

The Texas Company

IN THE

Supreme Court of. the United States

October Term, 1960. .

. No. 565.

AMERICAN DREDGING COMPANY,

pon Petitioner,

GULF OIL CORPORATION, STANDARD OIL COMPANY,

ATLANTIC PIPE LINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTIC REFIN-

ING CO., PIONEER OIL COMPANY and HERMAN S.

STOFFMAN and BENJAMIN STOFFMAN, |

Re spowde ufs,

; PETITIONER'S REPLY TO BRIEFS IN OPPOSITION.

T. E. Byrxe, Jr.,

Joun J. GuitFey.e, Jr.,

Kresex, Evaxs axp Suaw,

21 South 2th Street,

Viiilatlphia 7, Pa. °

. Counsel for Petition vr.

—~...

‘Bternatiomal, 711 So. SOth St., Phila. 43, Pa.

INDEX.

There Is Clear Conflict in the Following Respects ...... jokes 1

Only the Facts of the Present Case Are Unique. The Legal

Principle Forming the Basis of the Decision Below Has |

Particularly Wide Application in the Maritime Field .... 5

There Is Need for Clarification of the Interplay Between This

Court’s Decision in Halcyon Lines v. Haenn Ship Ceiling

_ and Refitting Corporation and Kernan, Adm. v. American.

~ Dredging andi eevensveceseecepececsocccocceds ~ §€

TABLE OF CASES CITED.

Alaska Steamship Co. v. Petterson, 205 F. 2d 478, affirmed

Ae GEG TE Es GD Kiewdecduacaudenwcdcccecdececs

Boudoin v. Lykes Brothers SS Co., 348 U. S. 336 ..........

Builders Supply Co. v. McCabe, 366 Pa. 322 ..............

Coston Supply Co. v, Pabellon, 342 U. S. 893 ..............

‘Crawford v. Pope & Talbot, Inc., 206 F. 2d 784 ............

Crumady v. Joachim Hendrik Fisser, 358 U. S. 423 ........

Davis v. American President Line, 106°F. Supp. 729 ........

Page

Fainland v. Trinidad Corporation v. United States, C. A. 23997

U.S. D.CE.D. Pa pUSSnVedeesecescognapeccseseces

N. W. 269 ORLOCHSODSESOSSEdRSEacerecceseseeseeeets

342 U.S. 282 Ct RE AEE IE ano eT PNG Ia ROR

Hess v. United States, 361 U. S. 314 . 2.2... occ cece cee ee

Jones v. Waterman Steamship Corporation v. Reading Com-

pany, 155 F. 2d 992 2.0.00... cece ceca peels

Kennedy v. Pennsylvania Railroad Company, 282 F. 2d 705 .

Kernan, Adm. v. American Dredging Company, 355 U. S. 426

M/V Tungus v. Skovgaard, 358 U. S. 588 ............0...

Pabellon v. Grace Line, Inc., D.C. S. D. N. Y. 1951, 12 F. R. D.

TEP ccbbvbcccsesensascsvcsocgocsses wocccceés posse 4

Romero v. International Terminal Operating Co., 358 U. S. 354

Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corporation, 350

Oe Wb OP stsuves .ocnees oo vccprccccovecccccsscecce

Slattery v. Marra Brothers, Inc., 186 F. 2d 134 ............

Spaulding v. Parry Navigation Co., 187 F. 2d 257 ...........

Sutherland v. Moore-McCormack Lines, Inc. and United States,

Somberg and Urban, C. A. 128,379, U. S. D.C. S. D. N. Y.

Svitak v. A/S J. Ludwig Mowinckels Rederii, C. A. 27678,

ie ee ie A ech Gdkdneddndededcoovecnccecss

PEP et ow a RT ar rr PERRET

TABLE OF CASES CITED (Continued).

Page ,

Tarantino v. Buck y. Isthmian SS Co., 1957 A.M.C. 797... 6

_ Thompson v: American Export Line, Inc., 15 F. R. D. 125 . 6

Waldoff v. A/S J. Ludwig Mowinckels Rederii, c. A.- 708, ;

Oe eB, Fe A GR escnccgevccccccccacsccestecess 7

Waterman S. S. Corp. v. Dugan & McNamara, Inc.,.81 S. Ct.

* 200, — Us S. — oo cece ee et eee tence eee e eee e anes 8

Weyerhaeuser S. S. Co. v. Nacirema a Operating Co., 355 U. S.

Td nc eeeensesencbeseepececurcee 7

Young v. Sinclair Refining Company, C. A. 28910, U. .. & <.

E. D. Pa. RU ORR e bee aeasetNeeseeGereenseeeee i

\' : .

STATUTES AND AUTHORITIES CITED.

Page

F. E. L. A., 46 U. S.C. A. 51 «.....-. Senekdcntouseceens 2,3,4 .

Gilmore and Black, The Law of Admiralty, 271 et seq. ....... 4

Jones Act, 46 U. S.C. A. 688 2... cee eee ee sauna Vetere Ue

Anakchaaelitache

Pa ae

Supreme Court of the’ United States.

| | October Term, 1960.

No. 565.

an ol

AMERICAN DREDGING COMPANY,

. Petitioner,

; a .

GULF OIL CORPORATION, STANDARD OIL COM-

PANY, ATLANTIC PIPE LINE’ COMPANY,

AMERICAN OIL COMPANY, TEXAS COMPANY,

ATLANTIC REFINING CO., PIONEER OIL ‘COM-

PANY anp HERMAN S. STUFFMAN anv BENJA-

MIN STOFFMAN,

ie Respondents._

PETITIONER'S REPLY TO BRIEFS IN OPPOSITION.

The various respondents urge this Court to deny cer-

tiorari, urging that the Petitioner did not point out conflict,

that the facts of this case are sui generis and that an impor-

tant federal question is not involved. Perhaps in an attempt

to achieve brevity we telescoped our petition unduly.

There Is Clear Conflict in the Following Respects.

1. All Cireuits, including the Third, recognize Indem- |

nity where the initial liability is imposed by the F. E. L. A.

and all apply State law to the indemnity-action. The de.

cision below is in conflict since it affirmed a holding that

because. ; |

2 - Petitioner’s Reply to Briefs in Opposition

‘*the obligation which libellant has satisfied .

has heen defined and imposed . . . solely as a fed-

erally created right under the Jones Act’’, the Peti-

tioner’s right to indemnity was ‘‘derived, if at all,

from the same source:’’ 175 F. Supp. 882 at 885 and

Brief for Gulf Oil Corporation in Opposition, P. 6.

2. The Second Circuit and various District Courts have

recognized the. existence of the right of indemnity in the

maritime field; sometimes granting and sometimes with-

. holding it based on the facts of the individual case.

3. There are basic conflicts in result and rationalé

between the holding in the'case at bar and decisions in other

F. E. L. A. and maritime cases decided by the Third

Circuit.

Perhaps some of the conflict may be. best illustrated

* by a quotation from a decision of the Court of Appeals for

the Third Circuit which was handed down the day after

that Court filed its opinion sur rehearing in the case at bar.

| Kennedy v. Pennsylvania Railroad Company, 282 F. 2d

705, was a suit against the employer under ¥. E. L. A. [46

U. 8. C. A. 51] in which the defendant issued a third. party

complaint seeking indemnity from United States Steel Cor-

poration for failure to properly maintain a crossing. .A

holding for the plaintiff was affirmed and in remanding the

- indemnity action the Court said:

. ‘*[2] If there is no express agreement as to in-

demnity between Railroad [Defendant] and Steel

[Third Party Defendant}, and Kennedy [piaintiff] is

- found to have been contributorily negligent, Steel may

plead his negligence as a bar to any recovery over by

Railroad. See Ft. Worth & Denver R. Co. v. Thread-

gill, 5 Cir., 1955, 228 F. 2d 307, Panichella v. Pennsyl-

vania R. R. Co., D. C. W. D. Pa. 1958, 167 F. Supp. 345,

reversed on other grounds 3 Cir., 1959, 268 F. 2d 72;

Flush v. Erie R. Co., D.'C. 'N. J. 1953, 110 F. Supp. 118,

_Petitioner’s Reply to Briefs in Opposition * 3

' 121; Lawrence v. Great Northern R. Co., D. C. Minn.

1951, 98 F. Supp. 746, affirmed sub nom. Waylander-

Peterson Co. v. Great Northern R. Co., 8 Cir., 1953, 201

F. 2d 408, 414-15, 37 A. L. R. 2d 1399; Wallace v. New

Orleans Public Belt R. Co., D. C. E. D. Iowa 1948, 78

F. Supp. 724, reversed on other grounds, New Orleans

Public Belt R. Co. v. Wallace, 5 Cir., 1949, 173 F. 2d

145. ‘See also analogous Jones Act cases: Spaulding v.

Parry Navigation Co., 2 Cir., 1951, 187 F. 2d 257, 261;

Pabellon v. Grace Line. Inc., D. C. s. D. N. Y. 1951, 12

F. R. D. 123; Ginsburg v. ‘Standard Oil Co. of New

Jersey, D. C.S. D. N. Y. 1945, 5 F. R. D. 48. The main

action between Kennedy and Railroad is governed by

the F. E. L. A. where the doctrine of comparative neg-

ligence is applied. In the third party action, the law

of Pennsylvania applies under which even the slightest

degree of contributory negligence will defeat a claim.

Middleton v. Glenn, 1958, 393 Pa. 360, 143 A. 2d 14. It

is apparent that the area of liability under the federal

act is much more broad than under the state law.’ »? 282

F. 2d 705 at 708-709. (Italics ours.)

In other words, the Third Circuit recognizes the right

to indemnity in F. E. L. A. cases and even points to

analogous cases under the Jones Act but, because of a mis-

application of this Court’s prior decision in Halryon Lines

v. Haenn Ship Ceiling and Refitting Corporation, 342 U. S.

282, it reached a result in the case at bar which is in conflict

with a host of indemnity cases where the original liability

was imposed under both the F. FE. L. A. and the Jones Act.

! In the above quotation the Court of Appeals refers

only to the District Court’s decision in Pabellon v. Grace

Line, Inc., but neglects to point out Pabellon was later de-

sided by the Court of Appeals for the Second Circuit, 191

F. 2d 168, and that this Court denied certiorari sub nom.

Coston Supply Co. v. Pabellon, 342 U. 8. 893. In Pabellon

the Court of Appeals for the Second Circuit reversed the

4 °Petitioner’s.Reply to Briefs in Opposition

District Court which had held that the complaints for in. B

demnity would not lie where,the plaintiff’s initial complaint |

was based upon the Jones Act [464 U.S. C. A. 688).

The decisions in Spaulding v. Parry Navigation Co., F

187 F. 2d 257 and Slattery v. Marra Brothers, Inc., 18% ¥

F. 2d 134, are clearly in conflict with the decision which F

this Court is now asked to review. In Spaulding the See.

ond Circuit looked to New York law and held that under fF

the ts indemnity would not lie. In Slattery it looked to §

New Jersey law. Indemnity was again denied on the facts, f

but the right to indemnity in a proper, non-contract factual 4

_ situation is implicit in both decisions. Pennsylvania, where F

_ the actionable facts of this case occurred, just as clearly —

does recognize indemnity. Builders Supply Co. v. McCabe,- F

366 Pa. 322 and other cases cited in the Petition. ae:

This conflict, taken in conjunction with the fact that F

the indemnity here sought is almost entirely for damages

paid by reason of the death of two of Petitioner’s employees

[Kernan, Adm. v. American Dredging Company, 355 U. S.

426], plus the Romero,’ Hess? and Tungus;' line of cases. §

cited at page 13 of the Petition, gives additional force to

the Petitioner’s argument that in cases such as this the Fed- FF

eral Courts-should look to State law to determine whether §

an employer held liable under the Jones Act may, in 4

proper factual'situation, obtain indemnity. Certainly that

is the universal holding when similar situations have arisen §

under F. E. L. A. and where the same question has arisen

in other Cirenits under the Jones Act.

The Third Cireuit decision in the case at bar is like:

wise in direct conflict to its own earlier decision in Jones ¢.

Waterman Steamship Corporation v. Reading Company.

155 F. 2d 992. See Gilmore and Black, The Law of Ad-

miralty, 271 et seq. where, at page 276, the following

appears: |

1. Romero v. International Terminal Operating Co., 358 U.S

ear “ :

. Hess vo U nited States, 361 U. S. 314.

3. M/V Tungus v. Skovgaard, 358 U. S. 588.

ph SEAS Te

Petitioner’s Reply to Briefs in Opposition 5

‘‘It is unfortunate that so relatively simple a situa-

- tion has become enmeshed in technicalities anc. that the

shipowner’s right,jo indemnity cannot be decided with-

are clearly with the shipowner. The torifeasor, if he

is required to indemnify the shipowner, is not being

made to pay anything which (assuming his negligence)

could not have been recovered from him directly in a

- tort action. The cases are in accord that if the seaman

first recovers medical expenses from the tortfeasor, the

shipowner gets a crédit if he is subsequently sued for

maintenance and cure. If so much is recognized, it

seems unduly technical to forbid the indemnity when

the seaman proceeds in reverse chronological order and

first collects his maintenance and cure from the ship-

owner. Furthermore, if the seaman joins both ship-

owner and tortfeasor as defendants, the cases hold

without exception that the maintenance and cure items

in any judgment are to be collected in the first instance

from the tortfeasor.” |

If the shipowner has a right of action- for indemnity

to recover the sums paid under the doctrine of maintenance

and cure, it iv a distinction without.a difference to say he

should not recover the sums he has paid as damages.

Only the Facts of the Present Case Are Unique. The Legal

' Principle Forming the Basis of the Decision Below Has

Particularly Wide Application in the Maritime Field.

The field of indemnity is probably the most rapidly de-

veloping: one in tort law.‘ The growth ‘of indemnity is so

- 4. A rough idea can be obtained from the fact that the 1952-

1957 five year digest volume of American Maritime cases requires

14 pages to digest the indemnity decisions during that period, whereas

the preceding volume covering the five years prior to 1952 requires

about one-quarter of a page. .

6 Petitioner’s Reply to Briefs in Opposition

recent that it is not strange that the problems encompassed

within the present case have not reached this Court earlier.

There are, however, a large number of cases awaiting

decision.

This Court’s decision in Boudoin v. Tykes Brothers §§

Co., 348 U. S. 336, has led to actions for indemnity in assault

cases. Thompson v. American Export Line, Inc., 15 F.R. D.

125. Injury cases involving cargo. stacked on piers have

resulted in indemnity claims which could not possibly be on

a contract basis. Tarantino ». Buck v. Isthmian SS Co.

1957 A. M. C. 797.5 Auto and other accidents to seamen

ashore have given rise to claims for indemnity which have

been judicially recognized where no contract could have

existed between Indemnitor and Indemnitee.

There is a fundamental difference between indemnity

and contribution which is either ignored or misunderstood

by those who refer to indemnity as ‘*nothing but 100% con-

tribution’’ [Page 7—Brief of Gulf Oil Corporation in Oppo-

sition]. As the Court of Appeals forthe Third Circuit has

itself said on another oceasion:

_‘*The cases since Halcyon have recognized the dif.

ference between ¢laims for contribution and for in-

demnity and have ‘held that Halcyon bars only the

former.’’ [Citing cases. ] |

Crawford v. Pope & Talbot, Inc., 206 F. 2d 784

at 793.

One of the cases cited by the Court in Crawford v. Pope

and Talbot, Inc. contains the following language :

5. Not officially reported.

‘Pétitioner’s Reply to Briefs in Opposition 7

‘*Both the common law and admiralty courts have

recognized a right of indemnity, as distinguished from

contribution, in a person who has responded in damages

for a loss caused by a wrong of another.’’

Davis v. American President Line, 106 F. Supp..

- 729 at 730. ret

In a field where, by reason of the liability imposed by

the Jones Act, an employer-shipowner has the obligation to

provide medical care with the resultant possibility of ag-

gravating injury through malpractice,* to respond in dam-

ages for the acts of dockowners,’ and is a warrantor of

equipment supplied by others,’ it is of particular importance

that this Court delineate the distinctions between contribu-

tion and indemnity in the field of maritime law.

- Halcyon Lines v. Haenn Ship Ceiling and Refitting

Corporation, supra, did not purport to control indemnity but

only contribution. This is evident from this Court’s later

decisions’in Ryan, Weyerhaeuser,” Crumady™ and Water-

6. Compare Fisher v. Milwaukee Electric Ry. & Light Co., 173

Wis. 57, 180 N. W. 269 with Fainland v. Trinidad C orporation v.

United States, C. A. 23997, U. S. D. C. E. D. Pa.; Sutherland v.

Moore-McCormack Lines, Inc. and United States, Somberg and

__ Urban, C.. A. 128,379, U. S. D. C. S. D. N. Y.; Young v. Sinclair

' Refining Company, C. A. 28910, U. S. D. C: E. D. Pa. ,

v. Waterman Steamship C orporation v. Reading Company, supra;

Waldof u. A/S J. Ludwig Mowinckels Rederii, C. .A. 27683,

U.S. D.C. E. D. Pa.: Svitak v. A/S J. Ludwig Mowinckels Rederii,

C. A. 27678, U. S. D. C. E. D. Pa. 4

8. Pabellon v. Grace Line, Inc., supra, Alaska Steamship Co. v. .

Petterson, 205 F. 2d 478, affirmed per curiam 347 U. S. 396 and

the numerous cases which have followed it.

9. Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corporation,

350'U. S. 124. ;

10.- Weyerhaeuser S. S. Co. v, Nacirema Operating Co., 355

U.S. 563.

11. Crumady v. Joachim Hendrik Fisser, 358 U. S. 423.

8 Petitioner’s Reply to Briefs in Opposition

man.'* These decisions do not cover the entire field of in-

demnity, but only the eases where the prospective indemnitor

is an employer subject to a Compensation Act containing

an ‘‘exclusive liability’’ provision. |

Unless the decision below is reviewed, the Third Circuit

will haye rewritten the entire law of indemnity and re-

written, as well, the familiar line so that it would become

‘fone if by land, none if by sea’’.

Certiorari should be granted and the judgment » re-

versed.

Respectfully submitted,

T. E. Byrne, Jr.,

Joun J. Gumroy.e, Jr,

Krusen, Evans anp Saaw,

Counsel for Petitioner. .

12. Waterman S. S. Corp. v. Dugan & McNamara,’ Inc., 81

S. Ct. 200, — U. S. —.

Viing Qupre “

COPY | perce

FEB 10 19n!

Ama R. BROWNING. Clore

IN THE

| | Supreme Court of the United States

- October Term, 1960.

No. 565.

AMERICAN DREDGING COMPANY,

. Petitioner,

: py Dh v.

GULF OIL CORPORATION, STANDARD OIL COMPANY,

ATLANTIC PIPE LINE COMPANY, AMERICAN OIL

COMPANY, TEXAS COMPANY, ATLANTIC REFIN-

ING CO., PIONEER OIL COMPANY and HERMAN S.

STOFFMAN and BENJAMIN STOFFMAN,.

| Respondents.

_ PETITION FOR REHEARING.

T.. E. Byrxe, Jr.,

Krusex, Evans & Suaw,

21 South 12th Street,

Philadelphia 7, Pa.,

Counsel for Petitioner,

-_ _

Vuternational 711 Su SOth Se, Phile 43, Ps

IN THE

‘Suprenie Court of the United States.

Octoser Term, 1960.

No. 565.

A .ERICAN DREDGING COMPANY,

Petitioner,

GULF OIL CORPORATION, STANDARD OIL COM-

PANY, ATLANTIC PIPE LINE. COMPANY,

AMERICAN OIL COMPANY, TEXAS COMPANY,

ATLANTIC REFINING COMPANY, PIONEER OIL

COMPANY axnp HERMAN S. STOFFMAN anp BEN-

JAMIN STOFFMAN,

Respondents.

PETITION FOR REHEARING.

This petition is filed to urge that this Honorable Court

May reconsider its order entered January 16th, 1961 deny-

ing the petition for a Writ of Certiorari in the above cap-

tioned matter. This case is the natural follow up of this

Court’s decision in Kernan'r. American Dredaing Com-

pony, 355 U. S. 426. On the present posture of the plead-

ings we take it that the courts must accept as a factual

basis the proposition that Gulf negligently deposited gaso-

line on the surface of the river and that the gasoline was

ignited by a lantern on American Dredging Company’s

tag which was lawfully navigating the river. American, not

being « joint tortfeasor with Guilt, claimed full indemnity

[as opposed to contribution] for all the loss American had

2 ‘Petition for Rehearing

sustained as a result of the fire which took two lives and

damaged the tug.

The ultimate result of the litigation as it now stands is

that American does not state a cause of action for the judg-

ments it had to satisfy as the employer held liable to the

estates of deceased employees under the Jones Act, Kernan

v. American Dredging Company, supra, but it does state

a cause of action for damage to its tug. -

In support of the petition for rehearing, the rere tf

. will press the following points: L

1. The question presented by the petition for

certiorari is of far reaching importance in the field of §

maritime law. ; .

2. There is conflict and confusion among the in-

ferior’ Federal courts, in spite of the assertion in the

briefs in opposition that there is not conflict.

3. It would appear that the petitioner’s reply to

the briefs in opposition was filed so close to the decision -

date that opportunity to consider the — was at least

minimal.

I. The Question Presented by tha Bidiees Se Denionat

of Far Reaching Importance in the Field of Maritime

Law. ,

The multiple briefs in opposition to the petition ail

played down the importance of the question which the

present case presented. This court’s refusal to hear and

consider the issue of the extent of the right of Indemnity

in the field of maritime law can only serve to compound the

confusion presently existing in the field of maritime law.

* To add to the confusion, the result of refusal of certiorari

here boils down to this. A railroad company held liable

under the Federal Employers Liability Act, 45 U.S. (. A.

51, has its right of indemnification, given the appropriate

factual situation. Even though the Jones, Act, 46 U.S.C. A.

Petition for Rehearing a 3

688 does nothing more nor less than incorporate the

F. E. L. A. into the shipowner-crew member relationship, _

nevertheless the decision below in the case at bar high-

lights the completely different result where an action for .

indemnification .is brought. against a negligent third-party .

tortfeasor by a Jones Act Employer. Thus under the same

statutory provisions, the ultimate result of risk-shifting

under identical statutes is made to depend upon the dis-

tinction between actionable facts occurring upon land and

the identical actionable facts occurring upon navigable

waters. We respectfully | suggest that such a distinction is

arbitrary, meaningless and groundless. This decision is

one whieh cries out. for the aid, assistance and guidance of

the country’s court of ultimate resort. Without it, lower

courts have reached a decision which assures unequal pro-

tection of the law—a railroad could recover, a maritime

employ er may not.

_ We again call the attention of this Court to the fact

that the dismissal of that portion of the petitioner’s libel

_ which sought indemnification for the sums paid in’ satisfac-

tion of judgments entered in death actions was entered be- .

fore an iota of testimony had been placed upon the record.

For all that this Coirt can now know, that record may turn

out to show not mere negligent conduct, but conduct which

- might well. be labeled wilful. It might be one thing to have

Lower Courts dismiss and this Court refused to review the

dismissal after the presentation of evidence. But in the

case at bar the two Lower Courts have, in effect, held that ~—

it does not. matter to what degree the evidence may show

reprehensible conduct upon the part of Gulf, American does

not state a cause of action for restitution or indemnity, al-

though the same pleading states a cause of action for prop-

erty damage.

The result which the courts below have reached can be

rationalized if, but only if, one or more of the following hy-

- potheses will stand logical analysis. We submit that none

of them will.

+ a Petition for Rehearing

Hypothesis A. The maritime law does not permit Restitu-

tion or indemnity, no matter what the facts may

be, unless there i is a contractual basis for it.

Comment: <A rule such as this would divorce the

whole field of equitable Restitytion from the mari-

time law which has, by tradition, been based upon

principles of equity. This Court has in the past

recognized the distinction between contribution

sought by one joint tortfeasor azainst another and

Restitution or indemnity sought by one secondarily

liable against another primarily liable. Compare

Ryan Stevedoring Co. v. Pan-Atlantic SS Corp.

300° U.S. 124 at 133 with Washingten Gas Liaht

Coe ve. District ef Columbia, 161 U.S. 316, and

Union Stockyards Company of Omaha vy Chicago

Burlington and Quincey Railroad, 196 U.S. 217.

Hy pothesis B. There is ho distinction between Restitution

or indemnification by payment of an entire joss

and contribution, or the recovery of a pro-rata

share of the less from another.

Comment: In Halcyon Lines & Hacnn Ship Ceil-

ang “and Refiftina Corporation, 342 U.S, 282, this

Court distinguished between those two and enun-

elated a rule applicable to elaine for contribution

only brought by one tortfeasor against his jeint

tortfeasor. At least without full exploration of the

problem by this Court, the rnle of Halcyon should

not be permitted to-be expanded by Lower Courts

to encompass the field of indemnification.

As He.cyon reached this Court, it was a claim by

one admitted tortfersor to recover a pro rata share

of the judgment it had paid from another whom

it alleged was a joint tortfeasor with it. Haleven

was certdinly not an attempt. by a party who had -

been held secondarily liable to recoup its entire

‘loss trom a party who was allegedly primarily

’ tiablé.

Petition f or Rehearing 5

Hypothesis C. There is (or should be) a distinction drawn

in the field of equitable Restitution based solely on

the distinctions between property damage on the

one hand and injury and death claims on the other.

Comment: After losses have, by payment of judg-

ments or repair bills been reduced to the common

denominator of money, there is no legitimate dis-

tinction between the parts which go te make up

the whole: More to the point, there is no longer

any legitimate distinction which the tortfeasor

causing both types of loss may legitimately invoke

as a sort of ‘‘Grandfather clause’’ to shield him-

self from liability for tort. American’s claim

against Gulf for a sum certain in money is not

legitimately separable at this stage of the proceed-

ing so that part is and part is not tainted.

Il. There Is Conflict and Confusion Among the Inferior

Federal Courts, in Spite of the Assertion in the Briefs

in Opposition That There Is Not Conflict.

One of the points asserted in the briefs in opposition -

is the absenge of conflict. That claim will not stand analy-

sis, ar,

In Davis rv. American . resident Lines" one of the Dis-

trict Courts has said, ‘* Both the common Jaw and a

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