# Petition for Writ of Certiorari — American Dredging Co. v. Gulf Oil Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0805%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 365 U.S. 838 ## Text = Se T: ? Fie COPY “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 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. : 4- eu ‘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. | “ a, 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. io 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 4 . 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. a 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 . . - . oe 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. a 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. t 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. 4: 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: Se 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 v. 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 ---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 ‘ ns ' “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. é Raymon T. Gurenr, , ' Counsel for Respondent, Esso Stand. ord Oi Company, - ; 120 Broadway, New York 5, N. Y. Dine. T. SwEENeRy, ' Of Counsel. on Pandick Press, Inc., 22 Thames St., New York 6, N. Y’.. U. 8, A. am 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 2 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 3 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. a . & € * 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 - 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 e ‘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. 3 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 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 . 4 ‘-- - 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 ee ° 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 ae ; : 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., >». a 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 21. Hart & Sacks, supra fn. 11 at P. 535. veloping a-rational comnion law of the sea,’’ *:* ‘and : 10. ; Petition for Rehearing | If on vetiie calls for the result which the court _ below has reached [and we insist that it does not], should not this court .re-examine Halcyon? This is particularly . true in view of the development, since Halcyon, of the Ryan “ line of cases. If, as has been suggested,” ‘*the unexpressed -reasoning behind the Haliyon opinion may’ be found in ‘the dissenting opinion in”’ ‘Ryan, should not this court determina whether there is another path more in keeping with developments in the law whith have taken place since ‘Halcyon: was decided, for it is almost inconceivablé that it would.be décided the same way today. _ The question is,important. There are many cases now pending {Petitioner’s reply to briefs in opposition, P. 7 fn. 6] in one District alone. Undoubtedly there are more: in other Districts, where the result would be incongruous if Indemnity i is to be denied under all circumstances — a contract) in the Maritime field. Re-hearing should be granted, the sie densing | cer- tiorari should be vacated and the. Petition for certiorari should be granted. Reapacttully submitted, , x. Byrne, JR., \ Krusen, Evans & SHaw, aa . Counsel for Petitioner. 22. C rrie—supra fn. 20 at P. 213. 23. Chiefly actions under the Jones Act coupled with alleged malpractice by the U. S. Public — Service. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0805%3A2. Public record. Not legal advice.