Respondents Brief in Oppositon — Nasta v. United States (No. 179)

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JUL 27 196)

JAMES R. BROWNING; Clerk

No. 179

Gn the Supreme Court of the Hnited States

OctToBER TERM, 1961

SaveRIO NAsTA iT AL., PETITIONERS

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Unirep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ARCHIBALD COX,

| Boitottor General,

WILLIAM H. ORRICK, Jr.,

; Assistant Attorney General,

er _ ALAN 8. ROSENTHAL,

DAVID L. ROSE,

« Attorneys,

Depertment of Justice,

Washington 25, D.C.

Page

Opinions below. - -- - - - - - - Ee eee ge IR ene 1

TIES AS na anne ng PR ee l

Ceres peeeieted........-.-..---......- ramets 2

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CITATIONS

Cases:

Graver Tank & Mfg. Co., Inc. v. Linde Air

Products Co., 336 U.S. 271._.---- Pa ee 4

Great Atlantic & Pacific Tea Co. v. Supermar-

ket Equipment Corp., 340 U.S. 147__.----- 4

Latus v. United States, 277 F. 2d 264, cer-

tiorari denied, 364 U.S. 827........-.---- 5

Noel v. Isbrandtsen, 287 F. 2d 7&3, certiorari

eee. eee We We. a cw cen ee 5

The Germanic, 196 U.S. 589.......--------- 4

United Pilots Association v. Halecki, 358 U.S.

Se FoR Nien eg RN et era ES 6

West v. United States, 361 U.S. 118_.-.-_---- 4, 5,6

Statute:

Suits in Admiralty Act, 46 U.S.C. 741, et seq. 3

re 9)

002342—461

2

QUESTION PRESENTED

Whether the courts below erred in finding that pe-

titioners’ injury was not occasioned by negligence on

the part of the United States.

STATEMENT

The basic facts were found by the district court

(181 F. Supp. 906, 906-910) and are not in dispute.

The S.S. John Marshall was a United States-owned

Liberty vessel which in 1946 had been deactivated and

placed in the ‘‘moth ball’’ fleet in the James River.

The deactivation required heavy work, which included

lowering the vessel’s standing rigging into cradles, re-

moving and stowing cargo blocks, draining boilers and

pipes, rendering the main engine inoperative, and

covering electrical equipment with preservatives.

After its deactivation, the vessel was a ‘‘dead ship’”’

incapable of navigation. 181 F. Supp. 906-907.

In April 1952, the John Marshall was transferred

to the reserve (moth ball) fleet of the Hudson River.

At that time 819 man-hours of labor were spent upon

her in rust removal, sweeping, storage of tank tops,

and other operations, but no metal preservatives of

any kind were applied. None of the workers suffered

any ill effects as a result of his presence on the ves-

sel. 181 F. Supp. at 907.

On May 22, 1955, the vessel was towed to a dry-

dock on Staten Island, where she was surveyed by a

marine surveyor who found her holds exceptionally

clean. From June 9 to June 24, 1955, a speed measur-

ing device that extends through her hull was installed ;

this required burnin; and welding some of the metal

portions of the vessel. None of the 20 or more work-

3

ers involved suffered any injury or discomfort from

his work upon the ship. 181 F. Supp. at 907.

Constable Hook Shipyard, Inc., was the successful

bidder on additional work to be performed upon the

John Marshall. On June 27, 1955, the vessel was

towed to the Constable Hook shipyard, where she was

placed in the sole custody and control of Constable

Hook. The work in the holds required burning and

welding metal with acetylene torches, and “chipping”’

metal with a pneumatic hose. During the course of

the work, the temperature was sometimes ‘‘well up

in the 90’s,’’ and greyish powder or smoke was present

in the holds. 181 F. Supp. at 907, 909.

As a result of these conditions the 10 petitioners,

employees of Constable Hook, suffered a skin irrita-

tion. Apparently, similar irritation was not experi-

enced by the remaining 15 or 20 employees aboard the

vessel. The degree of skin irritation was minor for

some of the petitioners, and substantial for others.

The differences in severity were due to differing skin

sensitivity. 181 F. Supp. at 908-910. :

Petitioners brought this action under the Suits in

Admiralty Act (46 U.S.C. 741, et seg.) against the

United States, as owner of the John Marshall, for

breach of the warranty of seaworthiness and for neg-

ligenee in failing to provide a safe place to work. In

the course of the trial, petitioners abandoned the un-

seaworthiness count and rested their case solely on

negligence. The grey powder was never subjected to

chemical or medical analysis, and no definite proof of

the cause of the skin irritations was offered in evi-

dence. 181 F. Supp. at 906, 910.

4

The district court expressed the opinion that pe-

titioners’ employer, Constable Hook shipyard, was

‘‘woefully negligent”’ in proceeding with the work after

learning of petitioners’ skin troubles, while failing to

provide ‘‘blowers’’ which would carry away the abra-

sive ash and dust caused by the use of acetylene torches

and pneumatie hose. The court, however, found that

no latent defects or hidden dangers existed on the ves-

sel when it was transferred to Constable Hook and

that there had been no negligence on the part of the

United States. It therefore dismissed the libel

against the United States. 181 F. Supp. at 910.

The court of appeals, in an opinion by Judge

Learned Hand, affirmed. 'The court noted that the

situation in this ease was similar to that in West v.

United States, 361 U.S. 118, where the Court denied

recovery against the United States. The court fur-

ther held that there was an absence of proof as to

what substance produced the skin irritations and con-

cluded that petitioners (Pet. App. 12):

* * * were under a greater burden than only

to show that they were injured while at work

aboard, and that is really all that they did show.

ARGUMENT

This Court does not “review concurrent findings of

fact by two courts below in the absence of a very

obvious and exceptional showing of error.” Graver

Tank & Mfg. Co., Ine. v. Linde Air Products Co., 336

U.S. 271, 275; see, ¢.9., Great Atlantic d Pacific Tea Co.

Vv. Supermarket Equipment Corp., 340 U.S. 147; The

Germanic, 196 U.S. 589. The courts helow found that

5

the vessel contained no latent or hidden defects when

transferred to the Constable Hook shipyard. More-

over, they found no basis in the record for a deter-

mination that the United States knew or should have

known that a dangerous condition would arise in the

careful performance of the work by the independent

contractor. In short, the courts below found that

there was no negligence on the part of the govern-

ment; the only negligence was that of the contractor.

These determinations are fully supported by the

record.

The shipowner is not liable, in the absence of its

own negligence or breach of the warranty of sea-

worthiness,’ for injuries resulting from unsafe con-

ditions caused by the work of an i: dependent con-

tractor making repairs upon the vessel. West v.

United States, 361 U.S. 118, 122-123; Noel v. Is-

brandtsen, 287 F. 2d 783 (C.A. 4), certiorari denied,

? Petitioners abandoned their claim for breach of the war-

ranty of seaworthiness in both lower courts (181 F. Supp. 906;

Pet. App. 11-12). In any event the warranty of seaworthiness

has no application to the John Marshall, which was a dead ship

of the moth ball fleet out of navigation undergoing repairs.

West v. United States, 361 U.S. 118; Latus vy. United States,

277 F. 2d 264 (C.A. 2), certiorari denied, 364 U.S. 827: Voel v.

Isbrandtsen, 287 F, 2d 783 (C.A. 4), certiorari denied, June 19,

1961.

6

June 19, 1961.". Thus, the courts below were clearly

correct in denying petitioners’ claim and there is no

occasion for further review by this Court.

CONCLUSION

For the foregoing reasons, we respectfully submit

that the petition for a writ of certiorari should be

denied.

ARCHIBALD Cox,

Solicitor General.

WraMm H. Orrick, Jr.,

Assistant Attorney General.

ALAN S. ROSENTHAL,

Davip L. Rose,

Attorneys.

JuLY 1961.

2? United Pilots Association v. Halecki, 358 U.S. 613, relied

upon by petitioners (Pet. 7-8), is not in point. There the

jury found in favor ef the libellant, and this Court, while re-

versing on the grofind that the doctrine of unseaworthiness did

not apply, remanded for a new trial on the question of the

shipowner’s negligence. On remand, the Second Circuit con-

cluded that the shipowner might have been negligent in di-

recting the use of a dangerous gas (carbon tetrochloride) in

confined quarters without adequate ventilation, distinguishing

West on the ground that in West the shipowner did not direct

the use of a dangerous method of accomplishing the work. 282

F. 2d 137. This case is like West (as the Second Circuit

noted below) and unlike Halecki, because the government did

not direct the use of a dangerous method.

¢ 8 GOVERMENT PRINTING OFFICE: 1961