Petition for Writ of Certiorari — Ellerman Lines, Ltd. v. Beard (No. 284)

! ~Ye'n Vel

|

- ‘ crn

7" >

Siuprn~.. | RA ae a WG 3 196!

7 Lf & JAMES B BROWNING. Clerk

IN THE

Supreme Court of the United States

October Term, 1961.

No. 284.

ELLERMAN LINES, LTD. and THE CITY LINE, LTD.,

Petitioners,

U.

LEIGHTON BEARD,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT.

T. EB. BYrve, JR.,

IKKrUsEN, Evans ax Byrne,

21 South Tweltth Str-

Philadelphia 7, Fo osna.,

Attorneys oor Petitioners,

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

INDEX.

NII I oo oh a ein eas glk vant d a whwnecn

Nl ed caguiuhey <b betas ee heedsennaaees

Se NI cass wa sah eavesadateks ds bawsbans

SURI RP IE I oc cnc nv eee ence da demceecccwaes

BASES WOR GCORANTING THE WHIT «oo. 5 icc cc ccc ccc ccnccaee

There Ts Conflict Among the Circuits Upon an Important

Question of Maritime Law Which Is Prolifie of Liti-

cas. , 4 veins wkd ea awe Oa oe be 8

There Is Also Conflict With Decisions of This Court ....

The Concept of Decision Below Raises Constitutional

i 6 hse SG AARNE TE RRR EES Kase «>

The Finding in Favor of the Plaintiff-Respondent Cannot

Be Justified Upon Any Ground of So-Called “Unsea-

SEE) oot eeu KAA RRR ARR eRES ANS Ruse oad ee

ee ek laeas Kwik aabanca wee a

APPENDIX:

Opinion of U. S. Court of Appeals for the Third Circuit

Juc ‘ment of U. S. Court of Appeals for the Third Circuit

11

21

la

l6a

TABLE OF CASES CITED.

Page

Aguilar v. Standard Oil Co., 318 U. S. 724 .......... ie Ne 16

Ambase v. Western Maryland R. Co., 368 Pa. 1 ...... pe orie e 9

Arena v. Luckenbach Steamship Co., 279 F. 2d 186 ai 189;

eee. a rr eer 5

Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 ........... 12, 13

Bennett v. The saaeuegea 254 F. 2d 138 (C. A. 2, 1958) .... 21

Bentley v. Albatross S. S. Co., (C. A. 3) 203 F. 2d 270 ...... 16

Berti v. Compagnie De Navigacion Cyprien Fabre, 213 F. 2d

ee ERE OEE ee eee er rae ee yee ee ere 5

Blankenship v. Ellerman’s Wilson Line, etc., 265 F. 2d 455 ... 6

Blier v. United States Lines Co., (C. A. 2), 286 F. 2d 920

ES RAM ea cu kwsNaeckech SepkGS i oh bdaks a Keke es 7

BE I I We OR We ioc ice cc tvn cebsdsesiecnss 8

Butler v. Norfolk Southern R. Co., 140 F. Supp. 601 ........ 9

Carabellese v. Naviera Asnar S. A., 285 F. 2d 355 (1961) .... 12

The Circeasian, (1067) Fed. Cas. 2,722 ..... 0. ccc cc cence 13

Carnec v. Baltimore & Ohio R. Co., 48 F. 2d 497; cert. denied

ee a ae uous eben kee iss Shae e 9

Dixon v. The Cyrus, [1789] Fed. Cas. 3,930 ........,...... 13

The Eugene Moran, 212 U. S. 466 .......... cece ane ks <a 7

Fuentes v. Panama Canal Co., 146 F. Supp. 303 ............. 16

Ginnis v. Southerland, 313 Pac. 2d 678 (Wash.) ........... 21

Goodhart v. United States Lines Co., 26 F. R. D. 163 ....... 21

Grovell v. Stockard S. S. Co., 176 F. 2d 121 ............... 16

Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342

I oa aay hp bn ip CARA CERES Ts aR AREW OSEN KO ROS 20

George T. Kemp, [1876] Fed. Cas. 5,341 .................. 12

Nowery v. Smith and Johnson, 161 F. 2d 732 .............. 16

Oblatore v. United States v. American Stevedores, Inc., 289

F. 2d 400 (C. A. 2, 1961) .............. Re Po patna esos 6

Pacific Natural Gas Co. v. Federal Power Commission, 276

i ¢ i] PSE eet EER NE EI, SE DU ce pee 8

TABLE OF CASES CITED (Continued).

Page

Parrott v. Wells et al. [The Nitro-Glycerine case], 82 U. S. 524 8,9

We ies ER Ds Pi ee ko ee Se ce Miwa erscan 16

Reddick v. McAllister Lighterage Co., 258 F. 2d 297 (1958)

(i. A 2), COt. Ge oe U.S ne ie een. 12

Roberts v. The Dindermere, 2 Fed. 722 [1880] ............. 13

Royal Mail Lines, Ltd. v. Peck, 269 F. 2d 857 .............. 5

Samuels v. Munson S. S. Lines, 63 F. 2d 861 (C. A. 5, 1933) = 21

Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946) ........ ) Pe Ree?

Smith v. The Mormacdale, 198 F. 2d 849 (C. A. 3, 1953) ; cert.

ee ee Ne cee ace tei sod see N Mas ees 21

State of Maryland v. Baldwin, 112 U. S. 490 ............... 10

Steward Machine Co. v. Davis, 301 U. S. 548 .............. 8

Swift v. The Happy Return, [1799] Fed. Cas. 13,697 ........ 13

Warren ¥. Usted Sita, 290 UU. BS. BEd ok ccc cccncvwsscen 16

Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U. 5.

Reg Oh CA eek La a ee RES Oath Oe AS Kae 9

STATUTES AND AUTHORITIES CITED.

Page

Alotz, “Ancient Greece at Work” (New York, 1926) ........ 19

Anderson, “The Sailing Ship” (New York, 1926) .......... 19

Baxter, “The House of Hancock” (Cambridge, 1945) ........ 19

Broodbank, “History of the Port of London” (London, 1921) 18

Casson, “The Ancient Mariner” (New York, 1959) ......... 19

Dana, ‘Two Years Before the Mast” (Boston, 1911) ........ 16

“The Diary of William Bentley” (Salem, 1905) ............ 19

Unwin, Editor, “Finance and Trade Under Edward III” (Man-

I PN EE sr oe welnie ca cena ens Mateden ube 17

Frank, “An Economic Survey of Ancient Rome” (Baltimore,

EE aed ete Chore eter E SE eee NeW ier Ae kwe Kes 19

Grosvenor, “The Port of London” (London, 1957) .......... 18

ge a EE ee ee ee ere eae ree 20

STATUTES AND AUTHORITIES CITED (Continued).

Page

PROMI SP, BFF og cic eck e kes cawenien j 9

International Convention, Brussels, 1924 ...............25. 20

Kelly, “An Eighteenth Century Seaman” (New York, 1925,

Sap EE SIE. 0k io Corse kN Kb aw ROR a Ag eee see en 17

Laws of the Hanse Towns, Article 18 ................0005- 15

Laws of Oleron, 30 Fed. Cas. 1177, et seq.:

ge Nae

ESS Cesc ar sdk ooe ced ceaee kek a Mee ANS 14

EE ix 9505 REE he eee ACO RES RACES RD 15

PE Ti ae CCR N Cage ad kid Goa ween weeedd 15

Longshoremen’s and Harborworkers’ Compensation Act, 33

Oe oe eS er eee rere 8

McFee, “The Law of the Sea” (N. Y., 1950) .............. 16

Meiggs, “Roman Ostia” (Oxford, 1900) ...............006. 19

Melville, “Redburn” (New York, 1924) ................25- 17

Marine Ordinances of Louis XIV, 30 Fed. Cas. 1205 ........ 15

Peters’ Admiralty Decisions, 30 Fed. Cas. 1279 .............. 13

Porter, “The Jacksons and the Lees, Two Generations of Mas-

sachusetts Merchants, 1765-1844" (Cambridge, 1937) ... 19

Rostovtzell, “Social and Economic History of the Hellenistic

COG WONT Fh og bck os 600s i SENG ie Ses 19

Salzman, “English Trade in the Middle Ages” (Oxford, 1931) 18

Samuels, “From the Forecastle to the Cabin” (New York,

SE 5 4pS as Sanaa eas Aa aes ee eke 17

Unwin, “The Guilds and Companies of Londou’ (London, ;

RPO Cae pe err arene nr a arrears! 18

‘ae ae IES 406054 Coney da set le cenpeeuekus 2

rs ee ie ic io 6h 6k ha deh oe beacuse taeans 3

Pg ee ee ee ee er eT eee 2

Carriage of Goods by Sea Act, 46 U. S.C. A. 1301 .......... 20

IN THE

Supreme Court of the United States.

OctorER Term, 1961.

No.

ELLERMAN LINES, LTD. axnp THE CITY LINE, LTD.,

Petitioners,

v.

LEIGHTON BEARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT.

The petitioners, Ellerman Lines, Ltd. and The City

Line, Ltd. are two British corporations which will here-

inafter he referred to as ‘‘Ellerman’’. They respectfully

pray that this Honorable Court may grant a writ of cer-

tiorari to the United States Court of Appeals for the Third

Cireuit to review a final judgment of that court entered

April 7, 1961, in which rehearing was denied May 31, 1961.*

OPINIONS BELOW.

The opinion of the Court of Appeals dated April 7,

1961 is reported 289 F. 2d 201. It is set forth in an appen-

dix to this petition.

* Atlantic and Gulf Stevedores, Inc. was a party below. It is

filing a separate petition. It is not a respondent as to Ellerman.

2 Petition for a Writ of Certiorart

JURISDICTION.

(a) The judgment of the Court of Appeals for the

Third Circuit affirming the judgment in favor of the re-

spondent and against these petitioners which had been

entered in the United States District Court for the Eastern

District of Pennsylvania was entered April 7, 1961.

(b) Pursuant to its rules, the Court of Appeals for

the Third Cireuit entered an order dated April 18, 1961

extending the time within which petitions for rehearing

might be filed to May 19, 1961. Petition for rehearing was

filed May 19, 1961 and denied May 31, 1961. The Court

of Appeals has stayed its mandate to August 4, 1961.

(c) Jurisdiction to consider the within petition is con-

ferred upon this Court by 28 U.S. C. A. 1254(1), the peti-

tion being timety filed under the provisions of 28 U.S. C. A.

2101(c).

QUESTIONS PRESENTED.

1. Is a shipowner who has engaged the seryices of an

independent contracting stevedore to discharge cargo car-

ried in common carriage by water liable as under prin-

ciples of vicarious liability for negligence of ,employees

of the contractor which results in injury to one of their

fellow-employees?

2. If the first question is answered in the negative,

then the question becomes: Does a shipowner engaged in

common carriage by water warrant [under the so-called

‘‘warranty of seaworthiness’’], to a longshoreman off-

loading cargo at destination that the containe1, in this

case straps around bales, is ‘‘seaworthy’’ when the steve-

dore elects to offload the cargo by inserting hooks under

the straps around the bales, pulling them out of stow and

lifting them out of the ship by suspending their entire

weight upon two out of the four straps around the bales?

Petition for a Writ of Certiorari 3

STATEMENT OF THE CASE.

As a common carrier by water, the petitioners’ vessel,

City or CatcutTta, transported several shipments of burlap

made up into bales, each bale circumscribed ‘around one

circumference by four metal bands or straps. Although

loaded in India by a sling around each individual bale, the

offloading of the cargo at Philadelphia was by a device

having six hooks, each hook at one end of a piece of manila

rope.* The opposite ends of each rope were attached to

a ring which was in turn placed over the ship’s cargo hook.

By inserting two hooks, one each under two of the four

metal bands encircling the bale, the contracting stevedore

was able to. pull three bales out of their position in the

ship’s stow and raise them through the ship’s hatch for

unloading onto the dock. After this inethod of discharging

had been in use for a number of hours, during which the

chief mate of the ship had protested to the contracting

stevedore what he considered ‘‘a dangerous way of dis-

charging’’ one of the bands around one of the bales broke,

all of the weight of the bale was placed on the other band

and it in turn broke. The bale fell into the hold, striking

and caroming off cargo still in the hold and rolled, injuring

the respondent, one of the longshoremen who had been

working in the hold of the ship attaching these hooks to

the bands around the bales preliminary to offloading. The

respondent, Beard, a Pennsylvania resident, filed a civil

action, basing jurisdiction of the Federal Court upon diver-

sity of citizenship [28 U.S. C. A. 1332(a) (2) ].

These respondents joined Atlantic and Gulf Steve-

dores, Ine., the stevedoring contractor with whom they

had a written contract under which it performed the off-

loading operation as an independent contractor, compen-

sated at a stated rate per ton.

The District Court submitted interrogatories to the

jury. Upon the basis of the charge in connection with the

* Photographs are at 143a-145a of the Record.

4 Petition for a Writ of Certiorart

interrogatories, the jury found negligence of the petitioners

and unseaworthiness of the ship. The Distriet Court’s

judgment was appealed. The Court of Appeals did not

pass upon the so-called ‘‘warranty of seaworthiness’’ issue,

stating that the ground upon which it decided the ease

made consideration of that issue unnecessary. [t did affirm

the judgment against the petitioners stating: ‘‘The record

affords ample basis for the jury’s firding that Ellerman

was negligent’? (Opinion, 7a) * because there was ‘‘sufti-

cient evidence ... adduced . . . toestablish that Beard

(the respondent) was injured as ai result of negligent

conduct of the discharging operation .. .’? The Court

also said that ‘‘. . . Atlantice’s (the stevedore’s) negli-

gence would make Ellerman (petitioner) liable to Beard

(respondent) . . .’’ (Opinion, I4a).

BASIS FOR GRANTING THE WRIT.

There Is Conflict Among the Circuits Upon an Impor-

tant Question of Maritime Law Which Is Prolific of

Litigation.

Recently the Court of Appeals for the First Cireuit

said:

“The decision that a portion of the ship may be made

unseaworthy by an act of a stevedore presents no novel

principle. Grillea v. United States, 2. Cir, 1956, 282

F.2d 919. It is quite unother step to say, as plaintiff

does, that because a stevedore may have made negli-

gent use or negligent choice, . . . of equipment in

which it is bringing freight aboard, the ship becomes

unseaworthy. The possible transitory nature of a econ-

dition of unseaworthiness has been aceented since our

opinion herein. Mitchell v. Trawler Racer, Ine., 1960,

80S. Ct. 926. But we do not believe that unseaworthi-

ness is to be equated with mere negligent conduct.

* Page references to the appendix to this petition.

and

Petition for a Writ of Certiorari D

Cf. Blankenship v. Ellerman’s Wilson Lines New York,

Inc., 4 Cir., 1959, 265 F. 2d 455 (a case considerably

stronger for the seaman). If a winchman employed

by a stevedore negligently lowered a boom onto a long

shoreman, it would be true, in a sense, that the long-

shoreman had not been working in a safe place. But

absent a showing that the winchman was an_ unfit

individual we could not say that the vessel was un-

seaworthy.’? Arena uv. Luckenbach Steamship Co.,

279 F. 2d 186 at 189; cert. denied 364 U.S. 895.

The Court of Appeals for the Second Circuit has said:

“The inference [in the Court’s charge] appears un-

mistakable that Cyprien could be found liable, despite

fully adequate equipment, solely on the basis of its

failure properly to supervise the operation. This we

think was fatal error.’’

again:

“Tf plaintiff’s injuries resulted solely from the man-

ner in which the work was done under American’s

supervision, he has no recourse against Cyprien [the

shipowner}.’’ Berti v. Compagnie De Navigation

Cyprien Fabre, 213 F. 2d 397.

The Court of Appeals for the Ninth Cireuit has said:

“The jury was not told explicitly that, if the action

of Wicks [a longshoreman, a fellow-employee of the

plaintiff] were the proximate cause of the injury, no.

recovery against Royal Mail [shipowner] could be

had.’’ Royal Mail Lines, Ltd. v. Peck, 269 FL 2d 857

at 809.

The Court of Appeals for the Fourth Cireuit has said:

“This argument [liability for negligence of his fellow-

employees] relates to the evidenee tending to show

6 Petition for a Writ of Certtorari

that the plaintiff’s fellow-workmen, in removing the

draft of lumber from the hold, negligently displaced

the lighting appliances-so that they thereupon became

inadequate. It is contended that if the jury should

find that such a state of affairs existed, then there

would be a breach of the duty of the owner to furnish

a seaworthy ship with its attendant liability

(citing cases).

We do not think that this position is tenable . 2. The

courts have not as yet generally accepted the view that

the obligation of seaworthiness has been so extended

that a seaman may now reeover damages from the

shipowner for injuries caused by the negligence of a

stevedoring contractor . . .*’ Blankenship v. Eller-

man’s Wilson Line, etc., 265 F. 2d 455 at 457.

It is only the Third Cireuit which says that the steve-

dore’s negligence would make the shipowner liable to the

injured longshoreman. It ix only the Third Circuit which

imposes liability upon the shipowner to a longshoreman

‘injured as a result of negligent conduct of the discharg-

ing e»eration’’ (Opinion, fa). It is only the Third Cir-

euit which imposes liability upon a shipowner where one

of the ship’s officers ‘‘fail(ed) to take effective measures

to stop the use of the discharging method’’ and that the

ship’s officers’ failure to thus interfere with the method

of operation adopted by the independent contractor, the

expert in the field, ‘‘would constitute negligent conduct for

which Ellerman [shipowner] was liable’? (Opinion, 9a).

In this regard the Third Cireuit seems in direct con-

flict with the decision in Oblatore v. United States v. Ameri-

can Stevedores, Inc., 289 F.2d 400 (C. A. 2, 1961), where the

court pointed out that since ‘‘. . . the United States

[shipowner] did not supervise or control the longshoreman,

but rather that the work was conducted solely by the long-

shoremen themselves, we cannot say that in the cireum-

stances of this case the United States violated: its duty to

Petition for a Writ of Certiorari 7

provide the longshoremen with a safe place to work. See

Berti ve. Compagnie De Navigation Cyprien Fabre, 213

BF. 2d 397, 400.”’

There Is Also Conflict With Decisions of This Court.

Whatever may be our views of this Court’s decision in

Mitchell ve. Trawler Racer, Inc., 8362 U.S. 539 and its logic!

it ix certain that this Court said that evolvement of fifteen

years of decision was ‘ta complete divorcement of unsea-

worthiness liability from concepts of negligence’’. Never-

theless, the decision below has equated negligence with

unseaworthiness. The Court refused to base its decision

upen unseaworthiness but achieved the same result? by

distorting all rules of viearious liability and held Ellerman

for negligence of the contractor in whose employ respond-

ent was when injured. This is not a mere extension of

‘“e .). lability without fault, analogous to other well

known instances in our law’ It is the imposition of

liability upon shipowner for the negligence of the stevedore,

and that is something entirely different, and, we suggest,

‘aises serious Constitutional questions. ‘*But, after all,

a fiction is not a satisfactory ground for taking one man’s

property to satisfy another man’s wrong, and it should not

be extended.’’ 4

We are not alone in our reading of this Court’s decision

in Mitchell, for the Seeond Cireuit has said:

‘*But the teaching of Mitehell is merely that there

must be and is a ‘complete divoreement of unsea-

worthiness liability from eoncepts of negligence.’ ’’ >

1. “The moving finger writes and having writ, moves on.”

2. For reasons we will discuss hereinafter.

3. Seas Shipping Co. v. Sieracki, 328 U.S. 85 at 94-95-97.

4+. Holmes, J., writing for this Court in The Eugene Moran,

212 U. S. 466.

5. Blier v. United States Lines Co., (C. A. 2); 286 F. 2d 920

batt |

8 Petifion for a Writ of Certiorari

In the case at bar, the Court of Appeals did not base its

holding upon concepts of seawerthiness, whether negli-

gently created or not. It held Ellerman liable to Beard for

Atlantic and Gulf’s negligence. But for the Compensation

Act,® Beard could have sued Atlantic and Gulf for the

damages i.e sustained attributable to his employer’s operat-

ing negligence. It is this lability for negligenee—not

unseaworthiness—which the decision below imposes upon

Ellerman.

It is submitted that the rationale of this Court’s deci-

sions do not permit this. From Steracki to Mitchell, liabil-

ity has turned upon the ‘‘unfitness’’ of the res. If there -

is any crux about which all of this Court’s decisions have

been made to turn in cases of this type, it has been the

concept of the ship as the offending thing, condemned be-

cause of its lack of fitness, even though trassitory. It has

been this coneept and not vicarious liability for the negli-

gence of another which has visited liability upon the owner

of the res.

The Concept of Decision Below Raises Constitutional

Questions.

This is a petition for certiorari and must necessarily be

as brief as we can make it. Therefore, we merely point out

that equal protection applies to these British Corporations,

and that ‘‘. . . the arbitrariness of a classification, if it is

bad enough, may be a violation of the due process clause’’ 4

and that ‘*. . . discrimination, if gross enough, is equiv-

alent to econfiseation . . .’’§

We are here dealing with the lability of a common

earrier by water. This Court’s decision in Parrott v. Wells,

6. Longshoremen’s and Harborworkers’ Compensation Act, 33

U.S.C. A. 901, et seq. § 5 of that Act provides that liability there-

under shall be “exclusive” as between employer and employee.

7. Pacific Natural Gas Co. v. Federal Power Commission, 276

F. 2d 350 citing this Court’s decision in Bolling v. Sharpe, 347 U. S.

497.

8. Steward Machine Co. v. Davis, 301 U. S. 548 at 585.

Petition fora Writ of Certiorart 9

etal. [The Nitro-Glycerine ease], 82 U.S. 524 has stood,

unchallenged, for the proposition that a common carrier

is not chargeable or responsible in damages to third per-

sons, even for explosion of goods transported, in the ab

sence of the carrier's neligence. No liability similar to

that imposed upon water carriers is imposed upon carriers

by rail, truck or air Tt is not imposed upon all) ship-

owners—compare discussion and cases cited, p. 21, infra.

The transposition of viearious liability from the em-

ployer to the shipowner is without preeedent in our law.

It expands ‘unequal protection’. — Its Constitutional

soundness is questionable, and should be examined by this

Court.

In no field of which we have knowledge doos the non-

expert ship's officer owe a duty to the expert te supervise

and coutrol the work method of the contractor who is the

expert In the field. We sueevest this Court's reeent citation

and apparent approval!’ of the Fourth Circuit's decision

In Coruee vy. Baltrmore & Ohio BR. Co. precludes the Court

below in our case from following a completely different

Innovation. In Corvee the Court said:

So. Phe dustrumentalities used for loading and the

methods of work, however, are matters within the eon-

trol of the contracting stevedore. In the absenee of

some showing that the master directed the use of neg-

Jigent methods, expressly approved them, or consented

fo their use, we knew of no principle upon whieh the

stevedore can be absolved from liability to the vessel

for negligence In using them fi

The Distriet Judge submitted this case te the jury

nnder instructions which would lave pormitted a finding of

negligence by the jury upon any one of three grounds, enu-

9. Butler vv. Norfolk Southern’ R. Co.. 140 F. Supp. 601;

Ambase v. Western Maryland R. Co., 308 Pa. 1; Hutchinson on

Carriers § 439.

10. In Heyerhaeuser S. S. Co. v. Nactrema Operating Co., 355

UU. 5. 3a.

11. +8 F. 2d 497; cert. denied 284 U. S. 621.

dl

10 Petition for a Writ of Certiorari

merated at the bottom of page 6a of the Circuit Court’s

opinion. Briefly stated, they are: (a) the use of the hook

method of discharging the bales; (b) the failure of the

ship’s chief mate to stop the stevedore from using that

method of discharge; and (c) failing to discharge other

cargo in bales destined for another port but which remained

in the ship at the time of this accident. The Court says:

“We are required only to determine whether there was

substantial evidence adduced at the trial with respeet to

any one of the three theories of negligence on Ellerman’s

part.”’

This is fundamentally wrong. The opposite is’ true.

If the court permitted the jury to find Kllerman liable upon

any one of three grounds but one of the grounds submit-

ted to the Jury was not tenable, then fundamental rules

require reversal, because no one can say the jury did not

select the untenable ground.

The jury findings must be examined in their setting

and not in the abstract. The jury by its answer to inter-

rogatories exonerated the stevedore. In order to do se it

had to find that the hook method of discharging bales was

proper, and, of course, if the method was proper, then it

follows there was no negligence on the part of the ship*s

mate in failing to stop the discharge. In State of Maryland

re Baldwin, 112 U.S. 490, this Court said:

“On the trial evidence was introduced bearing upon

all the issues, and, if any one of the pleas was, in the

opinion of the jury, sustained, their verdict was prop-

erly rendered but its generality prevents us from per-

ceiving upon which plea they found. If therefore,

upon any one issue error was committed, either in the

admission of evidence or in the charge of the court, the

verdict cannot be upheld, for it may be that by that

evidence the jury were controlled under the instrue-

tions given.’’

We will not encumber this petition with citation of the

numerous cases which have approved that rule. We pro-

Petition for a Writ of Certiorari 11

ececd to demonstrate its applicability to *e case at bar.

If the jury held Etlerman because of the use of hooks in

the discharge or because the mate failed to stop the dis-

charge operation when he thought it ‘tdangerous’’, a ver-

dict thereon is inconsistent with the jury's other finding

that the stevedore performed properly. That leaves only

one other tenable ground, the method of work whieh the

stevedore employed, eleeting te discharge the Philadelphia

cargo While there was still cargo aboard destined for New

York. Thus the holding of the Court of Appeals clearly

makes Kilerman liable for the negligence of a contraetor

and imposes vicarious liability upon the shipowner for the

negligence of the stevedore. This extension, or, more prop-

erly, distortion of the rule of ‘tunseaworthiness** requires

examination by this Court.

The Finding in Favor of the Plaintiff-Respondent Cannot

Be Justified Upon Any Ground of So-called ‘“Unsea-

worthiness”.

In the Distriet Court the issue of seaworthiness was

submitted to the jury under a charge whieh directed the

finding of unseaworthiness of the ship in the following

language :

“Now. Wf vou find that the bands on this bale whieh

fell into this hold, if vou so find that it did fall nito the

hold although T do not think there is any contradic-

tion -caused him to be injured, and that this rendered

the cargo unsafe for the longshoremen to handle, or if

you find that the bands of the bale were defective,

were inadequate, or insufficient, by reason of that

fact, or that it was a proximate cause of the plaintiff’s

injury, then you might find the defendants lable under

- the doctrine of unseaworthiness.”’

The Court of Appeals did not consider it necessary to

reach the issue of unseaworthiness which, it said, ‘‘was

12 Petition for a Writ of Certiorari

premised on Beard's view that the doctrine of unseaworthi-

ness extends to the packaging of the ship’s eargo, and that

the cargo in the instant case was ‘‘unseaworthy'? by reason

of the -‘inadequacy’’ of the steel bands used to bind the

burlap bales (Opinion, 14a-l5a).

It footnoted a statement that the plaintiff relied upon

Reddick v. McAllister Lighterage Co., 258 F.2d 297 (195s)

(C. A. 2), cert. denied 3858 U.S. 908; but the court relied

upon a later Second Cireuit decision, Carabellese o. Na-

vera Asnar S. A. in whieh the Second Circuit) limited

Reddick to its particular facts and said that it was ‘*not

disposed"? to extend the doctrine of unseaworthiness to

include ‘‘eargo safe to handle’’.

Perhaps the reluctance of the court to further explore

this claimed basis of liability was an analysis of a now

famous statement by this Court:

‘Formerly the work was done by the ship's @rew; but

owing to the exigencies of increasing commerce and

the demand for rapidity and special skill, it has become

a specialized service devolving upon a class tas clearly

identified with maritime affairs as are the mariners ’."*

Atlantic Transport Co. vc. linbrorek, 234 VS. 5.

The Imbrorek decision cites a number of authorities,

deeisional and text. Examination of all of the decisions

eited in support of the quoted siatement from the labrocek

ease will support only the statement that loading and wn-

loading a ship is ‘clearly identified with maritime alfairs*’

It will not support the statement ‘*formerly the work was

done by the ship's crew’. Extensive research cited to the

Court of Appeals, demonstrates the latter statement to be

completely fallacious.

Reviewing hurriedly some of the cases cited by this

Court in Imbrovek, the George T. Kemp, [1876] Fed. Cas.

5,341, contains the statement that ‘tthe stevedore is not

12. 285 F. 2d 355 (1901).

Petition for a Writ of Certiorari 13

a mariner’’, All the case holds is that the contract is

maritime. The sole question before the Court in that case

was whether the stevedore was entitled to a lien.

The Circassian, [1867] Fed. Cas. 2,722, held that a

stevedore did not have a claim cognizable under admiralty

and maritime jurisdiction. Roberts v. The Windermere,

2 Fed. 722 [1880] likewise holds that a stevedore had no

maritime lien. The Court points out that the unsuccess-

ful side argued that formerly mariners performed the work

of loading and unloading. The Court’s comment upon it

is thet it was ingenious but nof supported by authority.

We will not here undertake a complete review. Suffice

it to say that the cases cited in Imbrovek do not support

the proposition that, historically, the work of loading and

unloading was performed by ship’s crew. None of the

cases or authorities it cites support the so-ealled historical

concept.

More accurate, as we will demonstrate, is the decision

in Swift ve The Happy Return, (AUT99] Fed. Cas. 13,697,

Where Judge Peters, speaking of the Port of Philadelphia,

said:

‘*In this port, it is the general custom to hire others

than the mariners to lade and unlade vessels. The

merchants find it more for their interest so to do than

to depend on the mariners, who are particularly un-

governable after a voyage is ended; and are, when

arrived at home, impatient under confinement to the

drudgery of unloading the eargo.’’

The same judge in Diron ve. The Cyrus, [1789] Fed. Cas.

3,930, notes that: ‘Men were hired by the day to discharge

the cargo m

In an appendix to Volume 30 of the old #ederal Cases

there is printed, inter alia, the Laws of Oleron and other

ancient maritime codes. It is a reprint from 1 Peters’

Admiralty Decisions. Peters’ Admiralty Decisions (30 Fed.

Cas. 1279) were the decisions in the District Court for

14 Petition for a Writ of Certiorari

Pennsylvania from 1780 to 1806. If history is to be the

test, then this would seem to be an appropriate source. A

footnote at page 1176 reads:

‘‘In France the owners of ships receiving freight are

not obliged to pay the expenses of loading or unload-

ing, but they form a separate charge against the own-

ers of the cargo.”’

Article 10 of the Laws of Oleron, printed on the same

page, indicates that when the master of the ship ‘‘lets her

out to freight to the merchants he had to do certain things

by way of familiarizing the merchants with the ropes and

slings so that they could judge for themselves if they were

sufficient for the cargo the merchants intended to load.

At page 1177 of the same volume the following appears:

‘‘There were formerly, in several ports of Gulenne

certain officers called ‘arranseurs’ or stowers, who

were master-carpenters by profession, and were paid

by the merchants, who loaded the ship. Their wusi-

ness was to dispose right, and stow closely all goods

in casks, bales, boxes, bundles or otherwise; to balance

both sides, to fill up the vacant spaces, and manage --

everything to the best advantage. It was not but

that the greatest part of the ship’s crew understood

this as well as these stowers; but they would not med-

dle with it, nor undertake it, to avoid falling under the

merchant’s displeasure, or being accountable for any

ill accident that might happen by that means. There

were also sacquiers, who were very ancient officers,

as may be seen in th. 14th book of the Theodosian Code.

Unica de Saceariis Portus Romae, Lib. 14. Their

business was to load and unload vessels laden with

salt, corn, or fish, to prevent the ship’s crew de-

frauding the merchant by false tale, or cheating him

of his merchandise otherwise.’’ (30 Fed. Cas. 1177)

(Emphasis ours.)

Petition for a Writ of Certiorart 15

Apparently ships were leased or hired to merchants

who did the loading. Article 21 of the Laws of Oleron

(30 Fed. Cas. 1180) provides:

“If a master freight his ship to a merchant, and set

him a certain time within which he shall lade his vessel,

that she may be ready to depart at the time appointed,

and he lade it not within the time, but keep the master

and mariners by the space of cight days, or a fort-

night, or more, beyond the time agreed on . . . the

said merchant in this case shall be obliged to make the

master satisfaction for such delay . . . .’’

This we take to |. evidenee that it was not the ship’s

master or the ship’s company which loaded the ship, buat

the merchant who ‘‘freighted’’ or hired the ship for the

voyage, for Article 23 speaks of when a merchant freights

a vessel at his own charge.

In the same volume, at page 1203, are printed the

Marine Ordinances of Louis XIV. Under the heading

“Of Seaman”? (36 Fed. Cas. 1205) the first paragraph

reads:

‘“The Seamen shall be obliged to appear at the days

and places appointed, to take aboard the provisions,

rig out the ship, and set sail.’’

This provision was apparently taken from Article 18 of the

Laws of the Hanse Towns, another ancient eode.

The same code of Louis XIV, under the heading ‘‘Of

Freight’’ provides:

‘©2. If a vessel be hired, and the freighter does not

put her full loading aboard, the master shali not take

aboard any other goods without his consent nor-with-

out rendering him an account of the freight.

3. A merchant not loading the quantity of goods men-

tioned by the charter party, shall notwithstanding pay

the freight as if he had done it; and if he loads any

more he shall pay freight for them.”’

16 Petition for a Writ of Ceritorari

Article V of the Laws of Oleron indicates that when a

ship arrivec at port and was moored or lying in anchor,

and there were ‘‘a sufficient number of men aboard to keep

the decks and lading,’’? the men might go ashore even

without the master’s consent if they eame back in ‘‘good

time’’. It is difficult to see how, if the men who actually

sailed the ship were permitted to go ashore with only that

reservation, there would have been men available to load

or unload.

This Court iias referred to what it called the ‘‘classic

propensities of sailors ashore’’* in support of its exten-

sion of the’ doctrine of maintenance and cure to the sailor

injured on shore.’*

There is inherent ineorsistency here. Both cannct be

correct. It has been suggested" that when the Court

spoke of loading and unloading as work performed by the

ship’s crew, it was influenced by Dana’s ‘‘Two Years Be-

fore the Mast’’. Dana does describe one incident in Cali-

fornia in 1834 where a crew loaded a cargo of hides, but

there was no harbor and no local labor.'®

That is the only incident in two years. When Dana

boarded the ship Pilgrim in Boston, he had nothing to do

with loading and arrived on board the ship but a few hours

before sailing. On his return to Boston in 1836 aboard

the ‘‘Alert’’, Dana deseribes '* how the crew manned the

capstan to dock the ship and

‘“‘the last turn was made fast and the crew dismissed;

and in five minutes more not a soul was left on board

13. -lyuilar e. Standard Oil Co., 318 U.S. 724 at 731.

14. See also Warren v. United States, 340 U. S. 523: The

Quaker City, 1 F. Supp. 849; Bentley v. Albatross S. S. Co., (C. A.

3) 203 F. 2d 270; Fuentes v. Panama Canal Co., 146 F. Supp. 303;

Grovell v. Stockard S. S. Co., 176 F. 2d 121; Nowery v. Smith and

Johnson, 161 F. 2d 732.

15. W. McFee, “The Law of the Sea” (N. Y., 1950, page 175).

16. R. H. Dana, “Two Years Before the Mast” (Boston, 1911,

pages 93, 94, 119, and 120).

17. Ibid., page 461.

Petition fora Writ of Certiorari 17

the good ship Alert Sut the old ship-keeper, who had

come down from the counting house to take charge

of her.’’

Melville ' is iia of a sailor in port in Liverpool in

1837 when he says

‘As we had nothing to do with the eargo, of course,

our duties were light enough; and the chief mate was

often put to it to devise some employment for

us sg

Samuels '

deseribed only one instanee where the erew

unloaded cargo. This oceurred at Odessa during the plague.

Lighters were set adrift near the ship where it lay anchored

in the harbor, caught by the crew, brought alongside and

the eargo loaded into the lighters which were then set

adrift to Se picked up by the Russians. Samuels de-

scribes * paving off his crew and discharging the cargo

afterward. Kel'y’s work 7! deals with the period imme-

diately following the Amerie:n Revolution, but makes no

mention of crew handling cargo, although he does speak

of “lumpers’? (page 72), ‘twaterman’’ (page 161) and

‘‘vangs’’ unloading chests of soap (page 385).

Mnelish experience and history bears out our thesis.

Unwin * speaking of London in November of 1282) says

that the unloading of wine at Vintry Wharf was performed

by “four ganes of winedrawers of twelve men cach, for the

union rule is that there shall never be less than twelve men

to a job of this sort’’.

ge tee nance eneesse ccsemen-se eee wees - cece —— - + eee Se ee

18. Herman Melville, “Redhurn” (Ne Ww York: 1024, page 154).

19. Captain Samuel Samuels “From the Forecastle to the Cabin”

(New York, 1887, page 193).

20. Ihid., page 240.

21. Samuel Kelly, “An Eighteenth Century Seaman” (New

York, | 925, C. Garstin Edition ).

“Finance and Trade Under Edward IIT’, George Unwin,

Fditor (Manchester, England, 1918, page 22).

/~

18 Petition for a Writ of Certiorari

The same author says: ™

‘The Thames lighterman and the Billingsgate porter

are perhaps the most picturesque, as they are ecer-

tainly the most ancient types of London industry.

Their modes of work have varied very little during

the twenty centuries since the Romans brought them—

if indeed they did not find them.’’

Salzman ** says:

“The crew was not bound io stow the cargo, and the

patron [the ship’s owner] was bound to find for the

purpose men who understood the business.’’

Prior to the erection of the wet doeks in London about. 1800,

ocean-going ships moored in the Lower Thames in anchor-

ages such as Blackwall, Deptford and North Fleet, where

loading and unloading took place, often by rolling barrels,

hogsheads and similar containers on and off the lighters.

The ‘ticket porters’? who did the work were tightly organ-

ized into brotherhoods.**

‘*No labour in the port could be performed by any

other person whilst there was a sufficient number of

these men offering themselves. *’ 76

After the erection of the wet docks in London, necessary

because of the great rise and fall of the tide, vessels were

docked there and ‘tail her erew, save for one responsible

officer, had to leave her. Only men employed by the dock

eompany were allowed to discharge under the direetion of

one of the company's own foremen.’? ** |

23. “The Guilds and Companies of London,” George Unwin

(London, 1908, page 352).

24. “English Trade in the Middle Ages,” L. F. Saizman (Ox-

ford, 1931, page 236).

25. “History of the Purt of London,” Sir J. G. Broodbank

(London, 1921) Vol. 2, page 372.

26. Broodbaiik, supra, at page 430.

27. “The Port of London,” J. Grosvenor (London, 1957, page

64+).

Petition for a Writ of Certtorari 19

In ?eiraeus in Ancient Greece, sailors and dock work-

ers are mentioned as separate categories of endeavor,” and

at Delos and Alexandria the two belonged to separate

ewulds.**

The history of Rome, both of the city and the empire,

is similar. While its warships were propelled by oars, its

merchant ships were propelled by sails.” The port. of

Ostia at the mouth of the Tiber served the city. Seawalls

were erected to provide a sheltered harbor, but space was

limited and the necessity for swift loading and unloading

required men skilled in the task. The area within the sea-

walls had numbered berths ‘‘for the efficient distribution

of unloading gangs’*.8!— There were even specialized groups

within the overall group of longshoremen. There were

grain unloaders [saccari}| and men who unloaded the gen-

eral cargo [eeruli] 4?

There is other material of a different nature. Records

before and after the Revolution show that it was custom-

ary to pay for loading and unloading at Boston,** Salem,"

and Beverly.” These charges were for the services of

longshoremen employed by shor¢side companies, not un-

loading by the ship’s erew.

28. “Ancient Greece at Work,’ G. Alotz (New York, 1926,

pages 171 to 301).

29, “Social and Economic History of the Hellenistic World,”

UT. Rostovtzell (Oxford, 1941) Vol. 1, page 397; Vol. 2, page 788.

30. “The Sailing Ship,” R. and R. C. Anderson (New York,

1926, page 47).

31. “Roman Ostia,” R. Meiggs (Oxford, 1960. page 163).

32. “An Economic Survey of Ancient Rome,” T. Frank (Balti-

more, 1940) Vol. 5, page 250; See also “The Ancient Mariner,” L.

Casson (New York, 1959, page 193).

33. “The House of Hancock,” W. T. Baxter (Cambridge, 1945,

page 1260).

34. “The Diary of William Bentley” (Salem, 1905) Vol. 1

{ April, 1784+—December, 1792] page 143.

35. “The Jacksons and the Lees, Two Generations of Massa-

chusetts Merchants, 1765-1844," K. W. Porter (Cambridge, 1937)

Vol. 1, page 418.

°0 Petition for a Writ of Certiorari

Whether work was performed by the ship's crew or

not is not a question of law at all. It is a question of fact.

With respect to the seaworthiness of cargo and the

eontainer in which cargo is packed, the courts are not free

to write as upon a clean slate. Congress has entered the

field, along with other major nations of the world, and as

the result) of International Convention,® Congress has

adopted statutes such as the Carriage of Goods by Sea Act,

46 UL S. CLA. 1801 and the Harter Act, 46 U. S.C. A. 191-

196. Under COGSA the carrier is required to make his ship

seaworthy, properly man, equip aud supply it, and issue

a bill of lading which, inter alia, must show the apparent

order and condition of the goods. Neither the carrier nor

the ship is responsible under this legislation for insuf-

ficieney of packing or latent defects of the eargo.* Neither

the carrer nor the ship is responsible for losses with respect.

to cargo which arise without the actual fault and privity

of the earriers* It is elear from a reading of the Harter

Act that the Congressionally established norm with respeet

to the carrier and the eargo is due diligence.

We respectfully suggest that for a court to attempt to

pre-empt the legislative function by writing some new war-

ranty into this setting would only further confuse an

already muddled picture.

It is respectfully submitted that reeovery by the re-

spondent against the petitioner here should not be = sus-

tained by any theory of warranty with respect to the cargo,

or more properly the container in which cargo is packaged.

As this Court has said:

“‘We think that legislative consideration and action

ean best bring about a fair secommodation of the di-

verse but related interests of these groups.’’ Halcyon

Lines v. Haenn Ship Ceiling and Refitting Corp., 342

U.S. 282 at 286.

26. Brussels, 1924.

57. 46 U.S.C. A. 1304(2) (n) (p).

38. 46 U.S. C. A. 1304(2) (q).

Petition fora Writ of Certiorari re

The doctrine of ‘“seaworthiness’’ as it has been ex-

panded by this Court since the deeision in Seas Shipping

Co. ve. Sterackt, 328 U.S. 85 (1946), has broueht confusion

and incongruity into the law. Since it is so clear that the

Sterackt decision was founded upon an incorrect. factual

basis, we suggest that it should be repudiated. Certainly

it should not be expanded. This seems to be so for the

additional reason that if the shipowner has a sufliciently

large trade in a particular port to justify maintaining his

own stevedoring department, he can employ the loneshore-

men direetly. The injured longshoreman is then preeluded

by Section 5 of the Compensation Act from maintaining

any action other than that provided by the Compensation

statute.”

CONCLUSION.

Certiorari should be granted to review this decision

which imposes vicarious liability upon petitioners for nech-

genee of the stevedore engaged to unload its vessel The

stevedore is likewise petitioning for certiorari but that is

a different question. The court below didi not find its sup-

port for decision ino the ‘tseaworthitiess ** doctrine dat

held petitioners liable for the negligence of another. That

only compounds unequal protection as between the carrier

by water and the rail, trnek and air carriers. “Tt also makes

very unequal the protection afforded the smaller carricy

as compared with the large carrier by water who can

afford to equip and. staff its own stevedoring division,

thereby Insulating itself from all lability except under the

(‘ompensation statute. The longshoreman employed by the

stevedoring contractor has quite different remedies from

39. Samuels v7. Munsen S. S. Lines, 63 Vr. 2d Sol (CL AN. 5,

1933); Smith v The Mormacdale, 198 FF. 2d 849 (CL A. 38, 1953):

cert. denied 345 U. Ss. 90S; Bennett v7 The Mormacteal, 234 F.2d

138 (C. A. 2, 1958): Ginnts v. Southerland, 313° Pac. 2d 678

(Wash.). This method of operation is apparently expanding. Com-

pare Goodhart v7. United States Lines Co., 20 FP. R. 1). 163.

22 Petition for a Writ of Certtorart

the longshoreman employed by the large carrier, such as

Moore-MeCormack Lines, Ine. or Grace Line, Ine. See

cases cited in footnote 39.

The decision here should be reversed. It is respectfully

suggested that in doing so, the Court might well consider

a re-examination of the whole unseaworthiness doctrine

stemming from Seas Shipping Co. v. Steracki.

Respectfully submitted,

T. KE. Byrne, Je,

Krusen, Evans AND Byrne,

21 South Twelfth Street,

Philadelphia 7, Penna.,

Attorneys for Petwtioners.

OPINION OF U. &. C. A. 3.

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit.

No. 13,278.

LEIGHTON BEARD

Vv.

EvuermMan Lines, Lrp., and THe Crry Line, Lirp.,

Appellants,

v.

ATLANTIC AND GULF STEVEDORES, INC.

AppeEAL From THE UNItTeEv Srates PDistricr Court FOR THE

Eastern District oF PENNSYLVANIA.

—_ ——

Argued October 18, 1960.

Before McLaucuiuin, KaLtopner and Hastizt, Circuit Judges.

OPINION OF THE COURT.

(Filed April 7, 1961.)

By Kauopner, Circuit Judge.

~ The plaintiff, Leighton Beard, brought this civil ae-

tion, founded upon the diversity jurisdiction of the Dis-

trict Court,’ against the defendants, Ellerman Lines, Ltd.

1. Plaintiff is a citizen and resident of Pennsylvania; defendants

Ellerman Lines, Ltd. and The City Line, Ltd., are British corpo-

rations.

(1a)

ou Opinion of U.S. Court of Appeals

and The City Lines, Ltd. (¢*Kllerman’’), to reeover dam-

ages for personal injuries sustained in the eourse of dis-

charging cargo from the latter’s vessel, S. oS. ‘City of

Caleutta’’. Beard was a longshoreman in the employ of

Atlantic and Gulf Stevedores, Ine. (* Atlantie’'), a eon-

cern performing stevedoring services for the vessel.

Beard’s complaint alleged unseaworthiness and negligence.

Milerman joined Atlantic as third-party defendant, alleg-

Ine in its third party complaint that Beard’s injuries were

the result of Atlantie’s negligence in discharging the cargo

and oan using devices which were ‘tdangerous and im-

proper’* in dome so. Ellerman sought indemnity from

Atlantic, under their contract, ino the event it) was held

liable to Beard,

The case was tried before a jury, which found in

answer to specific interrogatories, in favor of Beard in his

aetion against Ellerman, and against Ellerman in its third

party action against Atlantie. Inoits answers to the inter-

rogatories the jury found the ‘'City of Caleutta’’ was un

seaworthy and negligent, and Atlantic without fault with

respeet to the accident which resulted in Beard ’s injuries.

The Distriet Court entered judgment ino accordance with

the jury's special findings in favor of Beard against Fller-

man and in favor of Atlantic against Ellerman in the third-

party proceedings. Tt later? denied Kllerman’s alternative

motions to set aside the verdict im Beard’s favor or for a

new trial.

Klerman has appealed, asserting im sum What the evi-

dence failed to establish unseaworthiness or negligence on

its part; that the jury's finding that Atlantic was not

negligent is ineensistent with its finding of negligence

against Ellerman since if there was ony negligence if was

that of Atlantic; and that Ellerman is entitled to Indemnity

from Atlantic as ‘ta matter of law'’', if we find that the

2. Ellerman's motions were filed May 7, 1958 and orally argued

on June 24, 1959. The District Court’s Order denying the motions

was filed April 4, 1960.

Opinion of US. Court of Appeals oi

record sustains a finding of negligence in the discharse of

the cargo.

The Distriet Court did not file an opinion and it is

necessary for that reason to set forth the faets in some

detail: |

On July 1, 195, the City of Caleutta’’ doeked atoa

pier in Philadelphia. In its cargo were bales of burlap

Which had been loaded aboard in dndia. The bales cach

contamed 36 to 40 bolts of burlap. enelosed in oa durlap

covering. Kach bale, weighing between Poe te Tee

pounds, had been compressed under tremendous pressure

and cireled with four parallel one ineh steel bands fastened

tovether with a patented clip or buekle. Sixty three tens

of the bales, consigned to New York, were stewed in the

forward end of the hold, whieh, by reason of the: shear of

the vessel, extender! out halfway Inte the spires of thre

hateh: aud TOO tons of the bales. coustened to Pbitach |

phia, were stowed foward the after cmd of the deeko The

bales were stowed on their that im thers to the same lierehit,

and there Was no separation between theme exeept for their

markings,

Atlantie’s longshoremen started discharcine the earse

at about E50 PLM. They used what are known as bale or

burlap hooks whieh consist of a metal rinse te whieh <1

Jeneths of quaniha rope are attached. At the onposite ened

of each rope there was a special ilat metal book. Pwo er

these hooks were inserted under two bates of cael oot

three bales by four lonygshoremten, two on each side of the

bales, and a fifth man put the ring on the enree hook at the

joined ends of the runners from the carge wineles ane

eave the sienal for the draft to be hoisted. “Phe dratt wis

then moved out into the square of the hated: urder the

hammer of the boom, which was positioned over Phitacdel

phia bales, and hoisted out of the hold, aeros= the ship

and then lowered on to the pier.

The first of the bales were removed from tite center

of the hateh and then the bales were moved out Prom the

Wings one row or tier at a time. The New York bales were

4a Opinion of U. S. Court of Appeals

not touched. There was enough space between the top

tier of bales and the underside of the ’tween deck for the

longshoremen to walk into the wings, and as a draft’ was

hoisted they retreated into them.

At about 4.30 P. M. (three hours after the unloading

had begun), when two tiers of the Philadelphia cargo had

been discharged, a draft of three bales was attached to a

set of burlap hooks by the longshoremen. ‘These bales were

in a row in the offshore wing under the coaming with ap-

proximately 12 feet of space above. As the draft, in the |

course of its hoisting, neared the coaming of the main deck

hatch the middle bands of one of the baies broke and when

the entire weight of the bale was placed upon the other

band it too broke, and the bale dropped onto the New York

bales, bouneed off, bounded across one-half of the hatch,

then some 20 to 25 feet astern of the after coaming, and

struck Beard, pinning him against the after bulkhead.

Beard was taken to the hospital where his right leg

was amputated, first below the knee and shortly thereafter

above the knee. He was 41 years old at the time.

The faets, as stated, are not in dispute, nor is there

any question presented here with respect to the amount of

the jury’s award of damages to Beard.

There was considerable testimony at the trial, expert

and otherwise, that it was the custom in Philadelphia to

use bale hooks in discharging bales similar to the type

here involved, known as ‘‘gunnies’’; that the Safety Rules

for the safe handling of cargo, prepared by the Philadel-

phia Marine Trade Association, and used by stevedore

personnel in Philadelphia, approved this procedure.

There was also testimony, by way of deposition of

Donald Quinn chief officer of the ‘*City of Caleutta’’ that

Quinn had observed the manner in which the vessel’s cargo

of bales of wool as well as the bales of burlap were being

discharged by Atlantic’s men and that ‘‘they were going

very quickly’’; that Quinn had told one of Atlantic’s men

‘‘with a bit of authurity’’ that he thought the use of bale

Opinion of U.S. Court of Appeals os

hooks in discharging the bales of wool ‘‘was a dangerous

way of discharging’’ and that he was informed ‘‘it: was

the custom of the port’’. Quinn also said that he bad

‘‘explained’’ to Atlantic’s men that ‘tin India they get

wire slings and put them around the bales so that each

individual bale has a wire around it, and as they hold it

tight, the wire tightens around it.”’

Quinn, however, did not direct Atlantic’s men to dis-

continue their method of discharging the bales. There was

expert testimony that the chief mate is responsible for the

safety of personnel engaged in cargo operations and that

his authority outranks the stevedore boss.

An expert metallurgist who had tested) steel bands

similar to those used here testified that in his opinion the

particular Jands on the bale that broke and struek Beard

had ‘‘something wrong with the materials”’.

The foregoing presents the factual situation as pre-

serted to the jury.

On this appeal Beard contends that the jury’s finding

of unseaworthiness is amply supported for these reasons:

* Hilerman had actual and constructive knowledge that

the burlap bales would be hoisted out of the hold by use

of hooks inserted under the bands of the bales’’, and, ‘‘It

was therefore charged with the absolute duty of supply-

ing bands to permit that activity to be accomplished in

reasonable safety’?; in the instant case ‘the bands were

inadequate’, and the burlap bales created an unseaworthy

condition because they were not capable of ‘being han-

dled for the purpose of loading and discharge’? by the

bale hook method eustomary in Philadelphia.

Beard further contends that the jury’s finding of

negligence on Ellerman’s part was supported by the testi

mony that) Ellerman had failed to provide him with a

“safe place to work’? in that (1) Ellerman breached its

duty ‘‘to use reasonable care to ascertain the methods and

manner in which the work was done and to forbid the use

of a method which was hazardous to his [Beard’s]

safety’’ and the failure of the chief mate to take effective

6a Opinion of U.S. Court of Appeals

measures to prevent an unsafe method of discharging the

burlap bales coustituted negligence; further (2). Eller-

man’s ‘‘failure to discharge the New York bales in that

port rendered the place of work unsafe and the defendant

negligent’’, inasmuch as had the New York bales been dis-

charged in New York the bale which had dropped would

‘normally strike a flat surface and roll or bounee but a

few feet’, while here the dropped bale ‘‘bouneed off and

rolled all the way to the after bulkhead of the No. 1 hold,

one-half the distance of the square of the hateh, and in

addition, 20 to 25 feet underneath the after *tween deck.’’

Atlantie’s position is that the jury's finding, in answer

to Interrogatory No, 4, that the ‘*fault’’ of Ellerman did

not ‘‘arise out of any failure’? on its part, was supported

by the evidence that its use of the bale hook method was

customary and not negligent; that the jury’s finding that

Ellerman was negligent could properly have been premised

on its failure to provide Beard with a ‘‘safe place to

work’’ in that it had not discharged the New York bales

at that port and they were so stowed that Beard was

exposed in the discharging operation to the catapulting of

the dropped bale which caused his injuries.

Atlantie contends that, for the reasons stated, the

jury’s finding with respect to it is not inconsistent with

its finding that Ellerman was negligent.

The District Court, in its charge, dealt with the theories

of Ellerman’s negligenee advanced by Beard.

On the score of the jury’s finding, in answer to Inter-

rogatory No, 2, that Ellerman was negligent, Ellerman *

and Atlantic both urge that the answer fails to disclose

whether it was based on (1) use of the bale hook method

in discharging the burlap bales; or, (2) failure of Quinn,

Elle-man’'s chief mate, to stop Atlantic from pursuing the

hale hook method of discharge which he had characterized

as ‘‘dangerous’’; or, (3) failing to provide Beard with a

3. Ellerman says: “It is impossible to tell what conduct by Eller-

man was found to constitute the conclusion ‘negligence’ ”

Opinion of U.S. Court of Appeals va

safe place to work in view of Ellerman’s failure to dis-

charge the New York bales at that port and their position

with relation to the bales which were being discharged at

the time of the accident.

Interrogatory No. 2 whieh presented to the jury the

issue as to whether Ellerman was negligent reads as

follows:

“Was there negligence on the part of Ellerman Lines,

Ltd., which was a substantial factor in causing in-

juries to the plaintiff?’’

The jury's answer to the interrogatory was ** Yes’

In disposing of Ellerman’s appeal from = the jury's

finding that its negligence ‘twas a substantial factor in

causing injuries to the plaintiff", we are required only to

determine whether there was substantial evidence adduced

at the trial with respect to any one of the three theories

of negligence on Ellerman’s part which measured up te

the applicable standard of legal proof and thus permitted

the jury’s fact-finding that Ellerman was negligent.

On the score of whether the record affords a substan-

tial basis for a finding that Beard’s injuries were caused

by somebody's negligence in the discharge of the burlap

bales this extraordinary situation presents itself:

Both Ellerman and Atlantic do not) really question

that sufficient evidenee was adduced in the record to estab-

lish that Beard was injured as a result of negligent con-

duct of the discharging operation; indeed they virtually

eoncede that the record establishes such negligence —they

only differ as to the nature of the negiigent acts and with

respect as to who was guilty of the negligent conduct.

Says Ellerman, in its brief: *

“We dispute that Ellerman was negligent and assert

rather that the negligence here was solely that of the

stevedore [Atlantie].’’ (Ellerman’s emphasis.)

4. Page 22 ‘Brief for Appeliant”.

8a Opinion of U.S. Court of Appeals

That statement was made in consonance with Eller.

man's position that Atlantic was in full control of the

discharging of the cargo; it was an ‘‘expert in the field’’

‘Ti was Atlantic’s method of pulling out the cargo, not

Ellerman’s’’; ‘*Ellerman would not be negligent for fail-

ing to either supervise or take over and itself perform

the details of the work’*; and, while Atlantie’s negligence

would make Ellerman liable to Beard, Ellerman was thereby

entitled to indemnity from Atlantic under their contract

for stevedoring services because of Atlantic’s ‘‘sub-stand-

ard*’ performanee.

Atlantic, replying to Ellerman’'s contention nere that

the jury's finding of negligence on its part was incon-

sistent with its finding, in answer to Interrogatories Nos.

4 and 5, that Atlantic was free of fault, made this state-

ment in its brief: °%

‘*Appellant [Ellerman] conveniently fails to acknowl-

edge that other issues were submitted upon which the

Jury could properly have found negligence on the part

of the shipowner. Plaintiff, through his counsel, con-

tended that Ellerman was negligent in failing to pro-

vide Plaintiff with a safe place to work. Evidence

was offered which established that certain New York

cargo was not removed at that port, was stowed in

a position exposed to this unloading operation and

was the very means by which the falling bale was

catapulted against Beard.

The Jury could properly find and by its verdit

undoubtedly did find that Ellerman was guilty of negli-

5. In its third-party complaint against Atlantic, Ellerman averred

that if it should be held liable to the plaintiff “then the third party is

liable over” to it “by reason of” Atlantic's failure “to properly perform

the work of unloading’; Atlantic “was negligent in the manner in

which it undertook to unload cargo’; Atlantic “supplied and used

devices in connection with the unloading . . . which were danger-

ous, improper and, in addition, violated the terms of the [stevedoring]

agreement.” (Eriphasis supplied. )

6. Pages 8-9 “Brief for Atlantic and Gulf Stevedores, Inc.,

Appellee’’.

Opinion of U.S. Court of Appeals 9a

gence im stowing the New York cargo with the Phila-

delphia cargo in the center of the hatch opening.

‘‘From the deseription of the accident by all the eve-

Witnesses, it ts clear that the accident would not have

vceurred had the falling bale nol struck the New York

cargo and rolled under the coaming aqainst Beard,

(emphasis supplied).

In view of what has been said it is unnecessary for us

to diseuss in detail all the evidence relating to the issue of

negligence. We have but to say that the record affords am-

ple basis for the jury’s finding that Ellerman was negligent.

For example, there was evidence that bands of bales

‘*broke”’’ in ‘‘roughly between 8 and 5 percent of the bales’

during discharging operations.’ It is true that there was

considerable testimony, as earlier stated, that it was the

custom in Philadelphia to use bale hooks in discharging

burlap bales and that the method was approved by the

Philadelphia Marine Trade Association. but as we held in

Curtis v. Carcia Y Cia., 272 F. 2d 235, 257 (1959) **sueh

custom, though it may be evidence of reasonableness, is not

econclusive,’’ and the jury may find, if there is) suMicient

basis in the testimony, that the customary method does ‘not

satisfy the standard of reasonable care."’

Further, there was testimony by Ellermian’s own chief

mate, Quinn, earlier referred to, that in his opinion the use

of bale hooks ‘*was « dangerous way of discharging’’, and

that he had ‘‘explained’* to Atlantie’s man that in Inilia,

in handling burlap bales they used the sling method.

On the score of Quinn's testimony it must be said that

his failure to take effective measures to stop the use of the

discharge method which he condemned as **dangerous”’,

would constitute negligent conduct for which Ellerman was

liable in the event of a jury finding that the discharging

procedure was in fact ‘‘dangerous"’, as he deemed it to be.

7. Testimony of Captain William Wheeler, associated with a firm

of marine consultants.

10a Opinion of U.S. Court of Appeals

Also, there was testimony that those engaged in the

tusk of discharging the bales were exposed to a hazardous

situation, by virtue of the stowage of the New York bales

with res? ect to the hales which were being mmlevlet an]

thas were not afforded a ‘sate place to work’’, whieh is, of

course, negligence on the part of those responsible. The

testimony on this score, as earlier stated jwas deemed ample

by Atlantic, an expert in the field, to sustain a finding that

Klerman had failed to provide ‘ta sate place to work”’.

It is settled law that Ellerman owed to Beard the obli-

cation to provide him with a safe place to work, and its

failure to do so constituted neghgence.

It is equally settled that Ellerman was under a duty to

use methods which complied with the standard of reasonable

care in the discharge of its cargo, and to forbid the use ofa

discharge method by the stevedore of its selection which did

net conform to a standard of reasonable care.

“The work of loading and unloading is historically ‘the

work of the ship's service’ ’*, as the Supreme Court said in

Whatever inconsistency Ellerman sees in the jury’s

answers to Interrogatories Nos. 2 (in which it was held

negligent) and + (in which Atlantic was absolved from lia-

bility over to Ellerman), it is not one which aids Ellerman

in Beard’s action against it. In answering Interrog tory

No. 2, the jury was determining the issue of neglis nee

between Beard and Ellerman. In answering Interrogatory

No. 4, the jury was determining, necessarily, the contractual

obligation of Atiantie to Ellerman. The issue for us on

appeal with respeet to this Interrogatory is whether as a

mnatter of law Atlantic ean be relieved of its contractual

obligation in any circumstenee of this case. The fact, that

the jury believed either that the contractual obligation of

Atlantic to Ellerman did not coincide with the duty of Eller-

man to the plaintiff, or that Atlantie properly discharged

its contractual obligations, if erroneous, would not require

that we reverse the finding of liability as between the plain-

Opinion of U.S. Court of Appeals Hla

tiff and Ellerman, if that finding is supported by the evi-

dence, as we have found that it does.

What has been said brings us to Ellerman’s contention

that if it ‘tis liable to Beard upon a theory of nevlicence

the undasputed evidence required the District Cort

to enter... judgment in Ellerman’s favor [against Mt

lantic] because it was clearly Atlantie’s action which

brought about the result and clearly it constituted a breach

of a warranty of workmanlike service.”

Our consideration of Ellerman’s contention is) con-

trolled by the principles recently summarized in Waterman

Co. vy. Dugan & MeNamara, 864 U.S. 421, 425° (1960), as

follows:

“In Ryan Co, ve. Pan-Atlantic Corp, 850 US. Va a

was established that a stevedoring contractor who

enters into a service agreement with a shipowner ts

liable to indemnify the owner for damages sustained as

noresult of the stevedore’s breach of his warranty to

perform the obligations of the contract with reasonable

safety. Uhis warranty of workmanlike service erleuds

to the handling of cargo, as in Ryan, as well as to the

use of equipment incidental to cargo handling. as in

Weyerhaeuser S.S. Co. ve. Nacirema Co, B55 Usas. 303.

The warranty may be breached when the steredare's

negligence does no more than call into play the vessel's

unseaiworthiness, Crumady ov. The Jo Wo Bisescr. 258

U.S, 428, 429. 00.027? (emphasis supplied).

Application of the principles stated to the indemmity

action compels the determination, under the particular ets

here and the jury’s finding with respect to Herman's nee-

ligenee, that Ellerman is entitled to indemnity trom At.

lantic as a matter of law.

As already pointed out, the record affords ample

basi., for a jury fact-finding that (1) use of the bale hook

method in the discharge of the burlap bales constituted

negligence, and (2) that the injured longshoreman was

not afforded a safe place to work.

12a Opinion of U. 8S. Court of Appeals

Atlantic suggests that the jury’s finding that Ellerman

was negligent was based on its failure to provide a safe

place to work in view of the fact that the New York

cargo ‘‘was stowed in a position exposed to this unloading

operation and was the very means by which the falling

bale was catapulted against Beard’’, and says that ‘‘the

jury could properly have found negligence on the part of

the shipowner’’ in this situation, and ‘‘it is clear that

the accident would not have occurred had the falling bale

not struck the New York cargo and rolled under the coam-

ing against Beard.’’ (emphasis supplied.)

Atlantic hoists itself on its own petard in stating that

the evidence established that the New York stow, as

positioned when the Philadelphia bales were being dis-

charged, created an unsafe place to work.

Under the principles above stated, the ‘‘warranty of

workmanlike service to perform the obligations of the con-

tract with reasonable safety’’, extends to the handling of

the cargo, and thus if it was negligence on Ellerman’s

ye tebe wp revit Baar ltacerewns MeiTpeMn eu Leta ys

part to permit Beard to work in an unsafe place, it was

equally negligent for Atlantic to ‘‘handle’’ the cargo in

the unsafe place to work.

It was Atlantic’s conduct in proceeding to unload

cargo in an unsafe place to work which ‘‘ealled into play’’

the unsafe condition which prevailed, and under Crumady

v. The J. H. Fisser, supra, it breached its warranty to

Ellerman. 7

What was said in American President Lines v. Marine

Terminals Corp., 234 F. 2d 753, 759, 60 (9 Cir. 1956), cert.

den, 352 U. S. 926, is significantly applicable here:

6

We are not concerned here with a situation in

which the stevedore’s breach of duty brings about the

injuries by operation upon a prior condition caused

by the shipowner’s negligence which is unknown to

the stevedore. Here the stevedore was fully informed

of the fact and of the possible consequences of the

shipowner’s negligence . . . and in face of all that

Opinion of U.S. Court of Appeals loa

proceeded to breach its duty so as to make that negh

genee an immediately dangerous force. . J[ TE |t was

the stevedore’s breach of duty that created the danger

and made it an active condition with immediately

forseeable consequences wt pane imjury.”

The “expertise” of Atlantic in the handling of cargoes

should have made it aware of the dangers inherent in’ the

discharge of the Philadelphia bales in view of the presence

of the New York stow. Tf a jury could ‘tproperly find”,

as Atlantic urges, that Ellerman was negligent in permit.

ting the discharge under the circumstances whieh pre-

eailed, because of their obvious dangers, it certainty fol-

lows that Atlantic, an expert in the field of handling carzo,

should have shown an awareness of the situation and

taken steps to avoid that which happened or refused to

proceed with the discharge of the cargo until the site of

discharge was made ‘a safe place to work.’

It must here be noted that the Distriet Court in its

chapee to the inryv with respect tevork indemnity action

t must here be noted that the Distarried on the dis-

charge to the jury with respeet to the ace unsafe to work

failed to instruct it that if Atlantic cawarranty [to leiler-

charge of the Philadelphia bales in a place contract with rea-

that it was guilty of a breach of its ‘twa

man] to perform the obligations of the ¢ respeet and to its

xonable safety.” the jury, in its an

The District Court erred in this ra Atlantic of ‘tany

error may be attributed the fact that thdance with its 0m

swer fo Interrogatory No. 4 acquitted

failure . . . to do its work in accordanthe Distriet Court

tractual obligation.” of Atlantie’s. per:

Further, in its charge to the jury th

prescribed the ‘‘eriterion’’, as it put it, ©

formance of its contract, as follows: i ae See We ae

: cargo, an unsafe

**You will have to decide whether or 1this cargo, in the

unreasonable discharge of this ca) |

method used in the discharge of thi

placing of the hook.’’

l4a Opinion of U.S. Court of Appeals

The phrasing of this instruction was such that it made

the sole ‘‘eriterion’’ of the jury’s test as to whether At-

lantic had breached its contract of ‘‘workmanlike service’’

in the use of the bale hook method in discharging the cargo.

The error of this instruction, as well as the error

committed when the District Court failed to instruct the

jury that it was a breach of Atlantie’s contract to carry

on the discharging operation in an unsafe place to work,

was further compounded by a last-minute instruction to

the jury, following conclusion of the charge in chief, and

just before the jury retired. The instruction referred to

follows:

“Tf you find that Atlantic & Gulf Stevedores, Mr.

Marshall’s client, was unloading the bales in a’ proper

and safe manner, using a method that was in accord-

ance with the practice, customs, and usage in the’

Port of Philadelphia, and that that was not in viola-

tion of their breach of contract which obtained be-

tween them, ther your verdict must be in favor of the

Atlantic & Gulf Stevedores.’’ (emphasis supplied.)

It may be noted that exception was taken to this in-

struction by Ellerman.

In summary, we are of the opinion that the testimony

addueed afforded ample basis (as Atlantic itself says) for

a jury finding that the discharge of the Philadelphia bales

was carried on in an unsafe plave to work and while that

finding made Ellerman liable to Beard it also made Atlan-

tic liable, as a matter of law, to Ellerman for indemnity

for its breach of warranty as previously detailed.

The opinion stated makes it unnecessary for us to

consider the issue of unseaworthiness * which was premised

on Beard’s view that the doctrine of unseaworthiness ex-

8. Hudgins v. Gregory, 219 F. 2d 255 (4 Cir. 1955).

Opinion of U.S. Court of Appeals loa

tends to the packaging of the ship’s cargo;* and that the

cargo in the instant case was ‘tunseaworthy’’ by reason

of the ‘‘inadequacy”’ of the steel bands used to bind the

burlap bales.

For the reasons stated the judgment of the District

Court in favor of the plaintiff Leighton Beard and against

the defendants, Ellerman Lines, Ltd. and The City Line,

Ltd. will be affirmed, and the judgment in favor of the

third-party defendant, Atlantic & Gulf Stevedores, Ine.

and against the third-party plaintiff, Hllerman Lines, Ltd.

and The City Line, Ltd. will be reversed, and the cause

remanded with directions to the District Court to proceed

in accordance with this opinion.

9. It may be noted that plaintiff relies in this respect on the hold

ing of the Second Circuit in Reddick v. Me.Mllister Lighterage Co.,

258 F. 2d 297 (1958), cert. den. 358 U.S. OOS where it was said

(p. 299):

ii . the holding of unseaworthiness may also be predicated on

the latent defect in the cargo crate’. But see Carabellese vo Naviera

Aznar, S. A., 285 F. 2d 355 (1960) where the Second Circuit Tnited

Reddick to its particular facts and said it was “not disposed” to extend

the doctrine of unseaworthiness te include “cargo sate to handle”.

l6a Judgment of U.S.C. A. 3

JUDGMENT OF U.S. C. A. 3.

UNITED STATES COURT OF APPEALS

For tHE Trirp Circuir

No. 13,278

LEIGHTON BEARD

v.

MLLERMAN LINES, LTD., axp THE CITY LINE, LTD..

Appellants,

Uv.

ATLANTIC & GULF STEVEDORES, INC.

Ox Aperan From rok Usxrrep Srates District Courr ror

tHe KBasrersx Distrier oF PENNSYLVANIA.

Present: McLatcaunios, Kanopner and Hastisb, Circuit

Judges,

This cause came on to be heard on the record from the

United States District Court for the Bastern District of

Pennsylvania and was argued by counsel

Qn consideration whereof, it is now here ordered aid

adjudged by this Court that the judgment of the said) Dis-

triet Court in favor of the plaintiff Leighton Beard) and

against the defendants Ellerman Lines, Ltd. and The City

Line, Ltd, be and the same is hereby affirmed, with costs;

and the judgment in favor of the third-party defendant,

Atlantic & Gulf Stevedores, Ine. and against the third-

party plaintiff, Hllerman Lines, Ltd. and“fhe City Line, Ltd.

be, and the same is hereby reversed, with costs; and the

cause remanded with directions to proceed in accordance

with the opinion of this Court.

ATTEST:

Ipa O. CreskorF,

Clerk.

April 7, 1961