A. & G. STEVEDORES v. ELLERMAN LINES
Legal provision: Amendment 7: Seventh Amendment
Argument of Francis E. Marshall
Chief Justice Earl Warren: Number 282, Atlantic and Gulf Stevedores, Incorporated, versus Ellerman Lines, Limited, et al.
Mr. Francis E. Marshall: Mr. Chief Justice --
Chief Justice Earl Warren: Mr. Marshall.
Mr. Francis E. Marshall: -- and Justices.
This matter involves a claim by longshoreman against a shipping company for injury sustained during the course upon loading a vessel in the Port of Philadelphia and in which, the shipowner inflated Atlantic and Gulf Stevedores whom I represent as a third-party defendant claiming indemnity.
In briefest terms, these issues were tried in a 10-day trial before jury and the jury found in favor of the plaintiff, the injured longshoreman, against the shipowner on findings of unseaworthiness and also on findings of negligence and at the same time, in answer to a specific interrogatory found that the stevedore did not violate the terms of its contractual obligation to do its work in a reasonably safe, proper and workmanlike manner.
Finding in the amount of $100,000 in favor of the plaintiff, judgment by the lower court was entered in favor of the plaintiff and against the shipowner and at the same time, judgment with respect to the indemnity action was entered in favor of the Stevedore.
The shipowner appealed to the Third Circuit Court after its motions for judgment N.O.V. or for a new trial had been denied by the trial judge.
And the Third Circuit Court in an opinion, April 7, 1961, affirmed plaintiff's judgment against the shipowner, but as to the indemnity action reversed the judgment of the lower trial court which had been entered upon the specific findings of the jury that the shipowner's fault did not arise out of any failure on the part of the stevedore to perform its work in accordance with its contractual obligation.
The Third Circuit Court, therefore, reversed the judgment and in its opinion in three separate places, holds that indemnity as a matter of law lies against the stevedore.
A petition for rehearing was filed on behalf of Atlantic and Gulf and the Third Circuit Court without opinion denied that petition.
A petition for certiorari was filed to this Honorable Court and this Court on October 16, 1961, granted the stevedore's petition for certiorari.
I might say parenthetically that there was a companion petition for certiorari filed by the shipowner, challenging the validity of the Circuit Court's affirmance of the judgment in favor of the plaintiff and on the same day that this Honorable Court granted the stevedore's petition for certiorari, it denied the shipowner's petition for certiorari.
Petition for certiorari in this case, before your Honorable Court, was to consider three basic questions and the subsidiary questions encompassed therein. The first question was whether or not a matter tried to a jury under a full and complete charge by the trial court which encompassed all the issues in the case whether or not, the Circuit Court by reversing the judgment entered upon that verdict was a violation of the second sentence of the Seventh Amendment which states in positive terms and no fact applied by a jury shall be otherwise reexamined by any court of the United States except in accordance with the common law.
The second question we pose for consideration by this Honorable Court is whether or not in the presence of a contract, and I might say that in this case, starting on page 147 (a), Your Honors will see a contract which consumes seven printed pages prepared by the shipowner, entered into by the parties, a contract which spells out the intention intended by those parties, whether in the presence of such a contract, and in the presence of a jury finding, after a 10-day trial, after a full submission of all the issues by the trial court is charged to the jury, whether the Circuit Court erred in reversing the judgment entered in favor of the stevedore without reference to the contract and merely on the holding that if it was negligence for the shipowner and if the jury found negligence of the shipowner as a matter of law, the Court was bound to enter judgment for the shipowner on its indemnity action against the stevedore.
The third question we pose to this Honorable Court is whether or not under this same circumstances, a court may do what the Third Circuit Court has done, namely to set aside the findings of a jury and a judgment entered thereon, without a plain showing as this Honorable Court has imposed as a prerequisite in the McAlister case, a showing that the jury verdict was clearly erroneous.
Justice Hugo L. Black: What was the ground on which they've said it was clearly erroneous?
Mr. Francis E. Marshall: If Your Honor please --
Justice Hugo L. Black: May I ask you just that --
Mr. Francis E. Marshall: You certainly may.
Justice Hugo L. Black: You said in accordance with the rule for the common law, you first have to say what that means --
Mr. Francis E. Marshall: Yes.
Justice Hugo L. Black: -- and then you have assumed, would tell us why -- what was the ground on which the Court said its there?
Mr. Francis E. Marshall: If Your Honor please very briefly, the Circuit Court reviewed all the evidence and it had before the question of the shipowner and the question of the shipowner's right against us, reviewed the evidence and said, “There is enough evidence here to hold the shipowner on negligence,”
Justice Hugo L. Black: Of the shipowner?
Mr. Francis E. Marshall: Yes.
He then said, in an opinion by Judge Kalodner, “If there is a finding by the jury that this accident was caused by the improper stowage on this vessel then as a matter of law, the ship -- the stevedore should have stopped its operation, and should not have proceeded to one load” and this was not a question for the jury.
This is a question which as a matter of law can be determined.
Justice Charles E. Whittaker: What are the facts?
What -- what happened?
Mr. Francis E. Marshall: Yes, I'd like to now set forth exactly what the facts are, if Your Honors please, that we have the history of how the matter gets before this Court.
Justice Charles E. Whittaker: I mean by that, what was charged as fault or negligence --
Mr. Francis E. Marshall: Yes.
Justice Charles E. Whittaker: -- that gave rise to the liability to the plaintiff?
Mr. Francis E. Marshall: If Your Honors please, Leighton Beard, the longshoreman on July 1, 1955, was working in the hold of the vessel.
The job at hand was to remove bales of burlap weighing approximately 1000 to 1100 pounds.
These bales of burlap were held together tightly by four metal bands approximately one inch in width.
Historically, and the evidence clearly demonstrates this, the means by which these bales are removed is to take a winch cable to which there's attached to large ring and to this ring are six long ropes, and to the end of each rope is what looks like a gigantic fishing hook with a flattened edge and the procedure by which cargo this time, under this record, clearly shows has always been done by this method in every port in United States and in Great Britain.
We would place, our longshoreman would place two bands -- two hooks, under two bands of each bale and we would raise three bales at a time, because there are six cables, six hooks, two bands on each bale being used as the lifting device.
On the staple day, after three hours of operation, one of these drafts rose to a height of approximately 30 to 35 feet at which point, two bands on one bale broke.
Justice Hugo L. Black: Who had baled it?
Mr. Francis E. Marshall: This was baled in India, if Your Honors please.
It was a consignment from India.
It was not loaded by the stevedore involved in this case but by others under the control and under the direction of the ship as the evidence, Chief Mate Quinn shows.
Justice Potter Stewart: Was in that respect, this was similar to the facts from the Waterman case where the cargo had been loaded in the Philippines.
Mr. Francis E. Marshall: Yes, that is correct that the cargo in Waterman had been loaded in the Philippines.
If Your Honor please in this case, we -- we take the position that there is more to our position just that someone else loaded this cargo.
What happened was that once this bale fell, its truck cargo that was consigned to the Port of New York because when this vessel came to Philadelphia, any evidence supports this and shows as I think fairly conclusively, there were 63 tons of these bales destined for New York, immediately adjoining 100 tons of these bales destined to Philadelphia, stowed to an equal height.
And after the three hours of operation, the New York cargo was of course somewhat higher.
The evidence will show two tiers higher and these bales, I might say, are two feet, by three feet, by four feet, so that when this bale dropped, the evidence indicates that it was going up in a perfectly straight vertical lift and there is no question about that.
The only witness who actually saw the bale after it began to rise, because obviously once the longshoreman helped bring this out to the center of the hatch and steady the load, they then go under the coaming to secure themselves from a possible fall of any type of cargo.
The only witness who saw what happened once this bale started upward, testified on page 22 (b) of this record, that it came up perfectly straight, didn't hook onto anything, didn't bump into anything.
This bale then struck the New York cargo and careened off a distance estimated variably up to 12 to 25 feet.
And Mr. Leighton Beard, following instructions given to him by his employer was then against the act bulkhead, that this was his day and this bale followed him right to that place and crushed it against the wall and he sustained very serious injuries.
The first operation, he lost the leg below the knee, the second above the knee, and finally at the hip level and these were the injuries and the damages that were claimed.
Justice Potter Stewart: Was it is that caused the bale to fall?
Mr. Francis E. Marshall: Your Honors please --
Justice Potter Stewart: Did the strap break?
Mr. Francis E. Marshall: Both bands on the one bale broke, and the bale therefore fell, catapulted off this New York cargo, careened off in the direction of Leighton Beard and pinned him against the bulkhead.
Justice Potter Stewart: And you'd -- and the stevedore had -- had pulled these bales by the strap, putting a hook through the strap and pulled them --
Mr. Francis E. Marshall: That's correct.
Justice Potter Stewart: -- horizontally --
Mr. Francis E. Marshall: That is correct.
Justice Potter Stewart: -- to the hatch, from -- from -- along through the twin decks.
Is that right?
Mr. Francis E. Marshall: Yes sir and may I say sir, on that point that five stevedores or five longshoremen with an average of 15 years of experience and five experts with an average experience of 35 years as seamen, as sea captains, as longshoreman, as stevedoring consultants, as safety engineers in maritime matters all testified and this is set forth, the specific page references to their testimony is briefly set forth in a footnote at the bottom of page 6 of our brief.
They testified that this is the only possible way by which bales weighing 1000 to 1100 pounds can be withdrawn from the tight stow that imbalanced these bales once they have made the voyage from Karachi, from India over the rough seas and there was testimony that five or six men he could not pull one of those bales out.
Justice William J. Brennan: What -- Beard prevailed on an allegation of unseaworthiness, is he?
Mr. Francis E. Marshall: Yes, if Your Honor please.
Justice William J. Brennan: What -- what was the unseaworthiness alleged?
Mr. Francis E. Marshall: The plaintiff's claim on the issue of unseaworthiness was, and there was expert evidence to support this theory by the way, that these bands for the purpose of this unloading, a matter which was known by Chief Mate Quinn and the vessel and this company, these bands became part of the ships unloading gear because there was no other way ever used to get these bales out.
And since the ship knew that these bales would have to be lifted out and pulled from tight stow by means of these bands and since Captain Arthur, a wit -- an expert of 35 years at sea, testified that this is the only way it could have been done since Chief Mate Quinn, the only witness who testified who was on board the ship on behalf of the Steamship Company testified he knew this was going to be the way, he knew no other way.
The theory was therefore, that once these bands broke for any reason, any absence of any evidence that they were rusted that they were worn, that they were -- had been badly used during the manu -- during the banding of them or during the loading of them, the unseaworthiness was the fact that the bands were a part of the ship's unloading gear and broke.
Now, the plaintiff's theory with reference to negligence --
Justice William J. Brennan: -- the case is before us though, was it on the premise that there's no challenge to that finding of unseaworthiness.
Mr. Francis E. Marshall: If Your Honor please, the case is before Your Honors for this sole question of whether or not the shipowner under the facts of this case is entitled to indemnity as a matter of law having been found guilty of negligence and guilty of unseaworthiness and at the same time, a jury having found us not to breach our contract (Voice Overlap)
Justice William J. Brennan: Well, I'm not quite clear about that.
I thought Beard prevailed not --
Mr. Francis E. Marshall: He did.
Justice William J. Brennan: -- on unseaworthiness but also on negligence?
Mr. Francis E. Marshall: Also in negligence; now I was just getting to outline the four theories that the plaintiff advanced against the shipowner on negligence.
As a matter of fact, the basic theory was that this Chief Mate testified that though he had been on vessels unloaded by my client for a number of years.
Two hours before this accident and there had never been any complaint, never any comment about it before, no challenge to the method, five stevedores said, the only method they ever saw, the only method they knew, five experts said the same thing and not only that this is the costumer in method, but it was the safest possible method, a method in accordance with the Philadelphia Maritime Trade Association Regulations, the plaintiff alleged against the ship.
You should not have permitted Atlantic and Gulf to unload this vessel if you, Mr. Quinn, Chief Mate knew that this method, though it may be the best, though it was proper, though it was reasonable, though it was workmanlike, in fact, you criticized this method as dangerous.
And an expert testified that you had the duty and the power to stop this operation and if in fact you had a better method, he talked about some method of using slings as they load them in India.
This is one of the basis upon which the plaintiff proceeded on negligence.
If you, Quinn, thought this was dangerous, you are the Chief Mate, you stood there and watch this operation, and the evidence is clear, Chief Mate Quinn testified in a deposition before trial which is offered in evidence.
He stood there, and he watched them work and two hours before this accident it's inconceivable because that might seem to some of us, he calls the port manager, the man in-charge on the vessel and says, “This is a very dangerous method.
You want to use slings like they used in India.
Justice Charles E. Whittaker: Did the court submit that issue, that method of unloading to the jury as an issue of negligence?
Mr. Francis E. Marshall: If Your Honor please, at page 39 of our brief, we have quoted the substantial part of the indemnity charge and for those of you have the -- the record before you at pages 171, 172, and 173 (a) of the record, this is laid out in detail, this entire method, if Your Honors please --
Justice Charles E. Whittaker: Well, if it was negligence -- if it was negligence for the master of the ship not to stop that method of unloading, was it workmen like for the stevedore to pursue it?
Mr. Francis E. Marshall: Yes, if Your Honor please, because five experts so testified, five stevedores -- five longshoremen so testified, this is the only method that had ever been used.
Defendant's own expert, the shipowner's own expert testified that the latest improvement in the method that we was use -- that we were using was in fact the improvement that he himself made and defendant's own expert Captain Paul Keeler testified in this record, and his ref -- page reference to his testimony appears at the bottom of six of our brief, that this is not only the -- the customary method but this is the safest method to unload this kind of cargo.
Justice Potter Stewart: Now, one thing that -- to drag the bales horizontally up to the hatch by that method, but I should think to then unload them from the hatch would be obvious to anybody who wasn't an expert.
It would be much safer rather than just hooking him through that steel strapping, the advance strap or whatever you want to call it rather than doing that to put it in a -- to put it in a sling or on a platform.
Mr. Francis E. Marshall: Well, if Your Honor please, Mr. Byrne on behalf of the shipowner argued that for a 10-day trial and argued that very completely in his charge to -- in his summation to the jury.
The point of it is, we had never heard of this method before, no one else had in this entire trial except Chief Mate Quinn and he said, “This is how they do it in India”.
Justice Potter Stewart: Well, that's not the only place they do it.
I -- (Voice Overlap)
Mr. Francis E. Marshall: But the point of it, if Your Honor please, these are 1100 pound bales.
These cannot be pulled together like 300 pound bales of wool and when Chief Mate Quinn was pinned down, he was really talking about wool bales weighing 300 pounds.
Because you -- even if you got this out to the square of the hatch, if Your Honor please, there was still the problem of moving an 1100 pound bale on to slings where they're lifted and the testimony in this case on that point was, it would take five or six men and then it would be a -- a greater hazard to them than this method.
We submit sir that this issue was fully exhausted in a trial of the case, in arguments to the jury, and that the jury decided the case in our favor.
Now, I should like the hasting -- in haste to suggest --
Justice Potter Stewart: (Voice Overlap) would you tell us again that -- how and why the jury decided the case against the shipowner?
Mr. Francis E. Marshall: Well, if Your Honors please, I have three other theories that the plaintiff advanced against the shipowner which I have not yet mentioned and may I just say that not knowing which of these four theories the jury found --
Justice William J. Brennan: I want to be clear, your -- it is the fact that the jury found -- for Beard on unseaworthy?
Mr. Francis E. Marshall: That is correct sir.
Justice William J. Brennan: Now, you're telling us that they also -- that the jury also found that for Beard on the theory of negligence?
Mr. Francis E. Marshall: That is correct sir --
Justice William J. Brennan: Was there separate question submitted --
Mr. Francis E. Marshall: Yes sir.
Justice William J. Brennan: -- on the theory of negligence?
Mr. Francis E. Marshall: At the bottom of page 4 and top of page 5.
The issue submitted to the jury was these --
Justice William J. Brennan: Of -- of what?
Mr. Francis E. Marshall: Of our brief sir, at the bottom of page 4, after this entire trial and may I say sir that these specific interrogatories were framed after and if Your Honors will look at the record, something like 42 pages of discussions, consultations, arguments, before the judge out of the presence of the jury on how we would encompass all of these issues.
The first question was, was unseaworthiness of the defendant a substantial factor in causing injuries to the plaintiff and the jury said, “Yes.”
The second question was, was there negligence on the part of the shipowner, which was a substantial factor in causing injuries to the plaintiff and the jury again said, “Yes.”
The third question was, in what amount do you assess damages?
The answer was $100,000 and now, we come to the crucial question which is before Your Honor, the fourth question to the jury was this.
“If you have answered 'yes' to questions one and two, did the fault of the shipowner, Ellerman Lines and the City Line Limited, arise out of any failure on the part of Atlantic and Gulf to do its work in accordance with its contractual obligations and the jury said, “No.”
And the fifth question was, if you have answered question number four in the affirmative, was this breach of contract a substantial factor in causing injuries to the plaintiff, and obviously having question -- answered question number four in the negative, this was answered in the negative.
And it was on those specific findings of the jury, that Judge Ganey, now a circuit judge of the Third Circuit, entered judgment on behalf of the stevedore in this case.
And it was the judgment entered upon those specific findings which Judge Kalodner swept aside and I submit so erroneously, because there were three other grounds of negligence.
Number one, that since the shipowner knew in fact that we had to lift these bales out, and since in fact it knew that it had cargo to go to New York and cargo to go to Philadelphia and that the ship would be in New York before it got to Philadelphia, it should not have stowed the New York cargo in such a manner that it was the impediment extending out into the square of the hatch so that when we operated in removing Philadelphia cargo, and the contract specifically says Philadelphia cargo, “No evidence would be at any right to touch that New York cargo.”
They must have known that a hazardous condition could possibly result.
This was strenuously argued by Mr. Browsky on behalf of the plaintiff in this case.
This was a condition existed, committed preexisting before we ever entered upon that vessel.
This was argued fully to the jury that they should've put the New York cargo on top, if in fact it had to be unloaded first or the Philadelphia cargo on top if in fact it had to be unloaded first.
But to leave us with the situation where under our contract, we're obliged to go aboard that vessel and unload Philadelphia cargo, we were doing just that in a proper workmanlike manner.
And may I say sir at this point that our contract specifically said that we shall perform our obligations, quote “with every care and due dispatch to the satisfaction of the shipowner.”
It actually goes on and says to the party of the first part charges and so forth, I said -- I substitute the word shipowner because that's untenable, but we will do our work with every care and due dispatch to the satisfaction of the shipowner.
Now, witness this, if Your Honors please, what an amazing coincidence it was that Chief Mate Quinn, the top officer on board that vessel chose to stand there and watch us do this operation, appreciating the situation, the fact that New York cargo there, and that it is now two tiers higher than the Philadelphia cargo, he had the duty and the right to stop under expert testimony and Judge Kalodner found this, the jury must have found it, as one possible ground of negligence.
If Your Honor please, all we did was to go in there and use a workmanlike, a safe, a customary and approved method and in the course of doing that, this accident happened.
Now, under those circumstances, if Your Honor please, the jury could have found that the improper stow was the condition in this case just as the fact that he may have been even a greater expert than we because certainly if the common experience in the United States is that this is the best, safest possible method and we're using it, the mere fact that Quinn injects himself over the case and says, “Oh I think this is dangerous, it might have been done differently of better,” the jury might have picked him up on that if they believe that he said this at all, and said “Okay Mr. Quinn, you know a better method, you're in-charge, you have a higher authority than the shipowner -- than the stevedore under the evidence of this case,” they did it in the safe, reasonable and workmanlike manner.
Justice Hugo L. Black: Is that contract in the record?
Mr. Francis E. Marshall: Yes it is sir, starting at page 147 (a) and may I say, after Justice Black's question, the only other question relating to conduct in this contract, again which takes up seven printed pages is, that if we damage any cargo, we have top pay for it.
No indemnity clause and we submit if Your Honor please, that under the decisions of Weyerhaeuser where the District -- the District Court directed a verdict against the stevedore, and on appeal, this Court with unanimous opinion said, “No, you can't do that.”
All questions relate into the contract, the intention of the parties whether or not the contract was breached are issues peculiarly for the jury and this Court in Weyerhaeuser went further and said in so many words, even if there is a breach of that contract, even if there is negligence on the part of the stevedore, the indemnity right exist only if there is only absent conduct -- and this is a quote, “absent conduct on the part of the shipowner which would preclude recovery” and this Court said that is an issue for the jury and, if Your Honors please, the latest pronouncement on this very point is the case of McNamara which we've cited in our brief.
McNamara said, “Even if there's negligence on the stevedore, even if it maybe a breach of that contract with the shipowner on whether indemnity is to be allowed, there may be conduct on the part of the shipowner which bars indemnity,” and that is an issue to be decided for the jury. We have said in our briefs, if Your Honors please, that this issue has caused great concern and great confusion among the courts because in the Fourth Circuit, in the case of (Inaudible), which are discussed in our brief, judges are trying to decide, well what is conduct, the absence of which will permit indemnity.
Justice John M. Harlan: Could I ask you a question?
Mr. Francis E. Marshall: Yes sir.
Justice John M. Harlan: I want to see if I understand your argument.
What you're suggesting as I get it is that the jury could have found that the negligence of Ellerman and Steamship Company consisted in permitting this loading operation to go on in the face of this New York cargo.
In other words, that even though there was no negligence?
Mr. Francis E. Marshall: Yes, Mr. Justice my basic point is that the negligence of the shipowner had been committed, and was existing the minute New York stow was placed adjoining Philadelphia stow in India.
Justice John M. Harlan: Yes.
Mr. Francis E. Marshall: You had a condition then committed --
Justice John M. Harlan: That's right.
Mr. Francis E. Marshall: -- which if, and may I say this, I argued this to the jury, but I submit sir, that if in fact --
Justice John M. Harlan: I'm just trying to see whether I understand --
Mr. Francis E. Marshall: Yes.
Justice John M. Harlan: -- your point of view, give me a bit of time.
Mr. Francis E. Marshall: I'm sorry sir.
Justice John M. Harlan: That the negligence that was the basis for the verdict against Ellerman consisted not on using this particular method of towing, vertical towing, but in performing the unloading operation or allowing the unloading operation to be performed with the New York cargo being positioned as it was, and that a verdict in favor of the -- against Ellerman was consistent with their verdict in favor of your client on the theory that your client was not responsible for that stowage, is that it?
Mr. Francis E. Marshall: Those are two of the points that I gave sir.
That is the one issue, the other is the improper stowage in the first instance and though I -- I'd like to assume (Voice Overlap)
Justice John M. Harlan: It's very difficult to understand if the negligence that was found by the jury is against Ellerman consisted in the use of this method of hauling the cargo out, if that was the negligence, it's very hard to see how they could have, at the same time, exonerated your client.
Mr. Francis E. Marshall: But, if Your Honor please, and this is a great difficulty once you start disturbing jury verdicts.
There were two other bases.
Number one, Mr. Browsky argued very, very strongly that they should remove this New York cargo when the ship was in New York and offering no explanation as to why they didn't -- this created the negligent condition which hurt Beard.
And there was one other point, if Your Honor please, we and the other shelters had no opportunity to inspect these bands down in the hole of this vessel, but the same Chief Quinn, who stood there and watched this unload, stood there when these bales were on the port pier in India and he testified, he was, “in charge of the loading” and that he “inspected the bales in a general way” and those are two additional factors which were strongly argued by Mr. Browsky to this jury.
He had the opportunity to inspect or have these bands inspected while they're out in the open in the broad daylight.
He knew they were going to be used for unloading and it was negligence on his part to inspect only in a general way.
Now, I will close by this comment, if Your Honors please, there having been four separate possible findings of negligence, four separate issues, not knowing which of these, we say that the Court below erred in the opposite direction to the case of Weyerhaeuser where there the lower Court directed the verdict against the -- or in favor of the stevedore.
Here, he -- I'm sorry -- Judge Kalodner directs a verdict literally over against us by picking out one of four possible grounds in saying, if it was negligence for the shipowner, it was negligence for the stevedore who by the way still has the protection of the Longshoreman's Act.
Justice Potter Stewart: Now, Mr. Marshall there are -- you say now four possible grounds of negligence upon which the jury could hold the shipowner liable.
First was the manner of unloading these bales.
Mr. Francis E. Marshall: First was the improper stowage in India.
Justice Potter Stewart: Improper stowage of India.
Mr. Francis E. Marshall: Improper stowage in India.
Justice Potter Stewart: Alright, leading to what?
Now what do you mean by improper stowage in India?
Mr. Francis E. Marshall: Knowing that we would be unloading Philadelphia bales with New York bales extending out to the center of the hatch and not giving us a level operation.
Justice Potter Stewart: Now, isn't that up to the stevedore?
Mr. Francis E. Marshall: No, if Your Honor please.
Justice Potter Stewart: Well, and why is it if he -- if he starts to unload, and he sees that it's going to leave a great big mountain of bales -- New York bales and they're going topple, it's up to him to flatten those out, isn't it?
Mr. Francis E. Marshall: But, if Your Honor please, there was evidence -- there was no evidence offered by the shipowner that we owed any duty with respect to the New York cargo.
And the only evidence on this record, may I suggest sir, was that of Fred Nelson, our stevedore (Inaudible) testified, we have no right to touch anything but Philadelphia cargo, and witness the fact sir, if these were, as an American Presidents Line removing a bin that had a locking device broken, or in Ryan, putting the chalk where it belong, or in a Crumady changing this little switch, this shipowner who confronts us with his vessel with 63 tons of bales, we would literally have to undertake outside the rights and duties under this contract the removal of 63 tons of New York cargo.
And I submit sir the first New York bale we touched, if it hit Beard, we would have an absolutely indefensible position because our contract --
Justice Potter Stewart: That's true.
Mr. Francis E. Marshall: We can only touch Philadelphia.
Justice Potter Stewart: Your contract didn't say that, did it?
Mr. Francis E. Marshall: Yes, it did sir.
Justice Potter Stewart: It said that you were to unload this ship in a -- in a workmanlike and safe manner and part of that, it seems, I would just think that it could be urged --
Mr. Francis E. Marshall: But if Your Honor please.
Justice Potter Stewart: -- part of that job would be to see to it that the other cargo was left in a safe position?
Mr. Francis E. Marshall: If Your Honor please, we submit that it would be a question for the jury as to whether there was any evidence that could have been done more safely than we were (Voice Overlap).
Justice Potter Stewart: Well, exactly.
That's the reason I don't understand your point two on negligence.
It's necessarily negligence confined to the shipowner and now, what's point three?
Mr. Francis E. Marshall: Point three, if Your Honor please, is the failure to remove the New York cargo when the vessel had previously been in New York.
Justice Potter Stewart: You say this is negligence?
Mr. Francis E. Marshall: I submit sir, it was argued by Mr. Browsky.
It was defended by Mr. Byrne.
These were issues outside my case.
I was defending the indemnity issue that was submitted to the Court in its charge, and I submit sir that this maybe one of the grounds that a jury could have found it upon. (Voice Overlap)
Justice Potter Stewart: Why is it negligence if he refused to take -- to fail to take the cargo off the vessel?
Mr. Francis E. Marshall: Because, if Your Honor please, it was argued by Mr. Browsky had this New York cargo been removed, the unleveled condition wouldn't have been there which caused the bale to precipitate over against Mr. Beard.
This is his argument against the shipowner, submitted to the jury under full charge by the Court.
Justice Potter Stewart: That's sort of 2 (a) then at the most, isn't it?
Then what's a -- what is (Voice Overlap)?
Mr. Francis E. Marshall: And then the third one if Your Honor -- if that's 2 (a) the third one is, that whereas the evidence shows we had no opportunity to inspect these bands in tightened hold, the ship owner's chief mate indirect evidence, I can give Your Honor the page reference if you wish, testified that he was in-charge of the loading and that he inspected these bales in a general way and the jury may (Voice Overlap).
Justice Potter Stewart: Several weeks or months earlier.
Mr. Francis E. Marshall: This is when the ship was loaded in India.
Justice Potter Stewart: In India and now your men, the stevedore's men were down there working with those bales on the very day that the accident happened.
Mr. Francis E. Marshall: But with a much less opportunity to inspect the bands because at the very least, at least half of the band is not exposed to view because it is in tight stow.
And there was no evidence offered by the shipowner that we had to inspect each one of these bands as they came out because this could not be done and unload a vessel that contained several thousand bales.
And the evidence, may I say sir --
Justice John M. Harlan: Well, Judge Kalodner seems to think that the jury was not instructed properly.
He says on page 15 (a) of your appendix to the petition of certiorari, he says that it must have been -- it must here be noted that the District Court in its charge to the jury with respect to the indemnity action, they failed to instruct it, that if Atlantic carried on the discharge of the Philadelphia bales in a place unsafe to work, that means by reason of the presence of the New York cargo, I suppose, that it was guilty of the breach of warranty, and then he goes on and says the District Court urged in this respect into its error may be attributed to the fact the jury in its answer to Interrogatory Number 4, put it to Atlantic if there's any failure.
Now, my question to you is, was such a request put by your adversary?
Mr. Francis E. Marshall: No sir.
And I challenge sir the statement that this was not submitted to the jury and that it was limited to the bale and hook method because, if Your Honors please, you'll look at page 39 on this question of the criterion, the Court did not say the criterion and it is the hook and bale method as Judge Kalodner did.
Here is what the Court said, “Ellerman Steamship Company says to you, that if there is any liability, any liability which we owe Mr. Beard, that condition was created by Atlantic and Gulf Stevedores.
This is in the exact middle of page 39.
That is your criterion.
Did the Atlantic and Gulf Stevedores create the condition which made Ellerman Lines and the City Lines responsible to the plaintiff and to show that he didn't limit this just to the hook and bale method he says, “there again,” as he had said earlier, “you have to run the whole gamut of the facts in the case.
You will have to decide whether or not there was an unreasonable discharge of this cargo, an unsafe method used in the discharge of the cargo” and this I think is crucial, “did they,” the stevedore, “breached that contract to do it in a workmanlike manner” and this is the test, if Your Honor please, submitted to the jury, “with the utmost care.”
Justice John M. Harlan: Yes, but that's all very vague and ambiguous now from the jury standpoint, but if this question that Judge Kalodner said, should have been put to the jury but was not put to the jury.
Had it been put to the jury, and the jury has brought in a verdict against you, would you be here?
Mr. Francis E. Marshall: If Your Honors please, I don't rely solely on that one portion of the charge.
This issue was more fully put to the jury than this one quote.
Obviously, we can't quote the whole charge.
I would ask Your Honor, Justice Harlan, to look at page 1 (a) --
Justice John M. Harlan: But I'm trying to -- what I'm trying to get at is that the respect in which Judge Kalodner says that the instructions were deficient, do they or do not -- this was the failure to give that instruction, represent a denial of the request for such an instruction or is it simply that the judge himself didn't do it?
Mr. Francis E. Marshall: May I suggest this to you sir?
Mr. Byrne, during all of these discussions, never mentioned the New York cargo on which just -- Judge Kalodner hinges his whole finding, never mentioned New York cargo and if you will look at the points for charge submitted by the defendant shipowner, he not only does not mention unsafe place to work, he does not mention New York cargo.
Justice John M. Harlan: That's what I imagined.
Mr. Francis E. Marshall: Now, if in fact Mr. Byrne wanted a more specific charge, he could've had it and may I say sir, this appears at 182 (a).
Now listen to this as to the extent to which the Court instructed the jury.
Ladies and gentlemen this is Mr. Byrne's request, and this is during -- after the charge in chief and during these 30 some pages of discussion on the record where we were up at the sidebar trying to hammer out the proper points.
Justice John M. Harlan: What page is this?
Mr. Francis E. Marshall: 182 (a) starting about one-third way down where it says “To the jury.”
Ladies and gentlemen, if you find in the plaintiff's case, Mr. Beard, against the shipping companies that that band broke by virtue of the negligent conduct of a longshoreman, who were putting it together and pulling it out of stow as emphasized by Justice Stewart and taking it up, if there is evidence to so substantiate that, if that negligent conduct was responsible for the break rather than unseaworthiness of the band, whether or not the negligent conduct of the longshoreman resulted in the breaking of the band, I think you have to ask yourself that on both sides of the question.
And I won't take the time, but the next two pages, Mr. Byrne asked for two additional specific points and got them over my objection.
I submit to you, this issue was fully submitted to the jury, the jury having found in our favor this being an issue peculiarly to be found by jury it ought to stay.
Justice John M. Harlan: Well, it was submitted as fully as your adversary wanted it submitted.
Mr. Francis E. Marshall: Yes sir particularly since he offered no evidence against us.
Justice Hugo L. Black: May I ask you one question, I don't want to delay you but --
Mr. Francis E. Marshall: Yes sir.
Justice Hugo L. Black: -- do you accept the premise that a finding against the shipowner of unseaworthy by reason of defect in the ways of work and so forth, would justify a finding in favor against the stevedore on the ground of negligence?
Mr. Francis E. Marshall: If Your Honor please, I view this as one where it is perfectly proper and sustainable to find negligence and unseaworthiness against the vessel and still consistently find in favor of the stevedore.
Justice Hugo L. Black: I'm talking about unseaworthiness only.
Mr. Francis E. Marshall: On unseaworthiness alone, if Your Honor please, recognizing that this case was tried for 10 days and nearly I'd say 80% of the testimony dealt with those bands, experts, we had metallurgist in the case, I would say that if those bands broke and there was no showing that we could or should have found any defect in them, I would say that a finding of unseaworthiness against the vessel could clearly be sustained and on the same posture, there couldn't possibly be any finding that we brought that into play or created the condition.
Justice Hugo L. Black: Are the rules the same to finding liability on account of unseaworthiness and on the account of negligence?
Mr. Francis E. Marshall: If Your Honor please, this is the first maritime case that I've tried for four and a half years.
I've been trying to figure this out, but I view it as this.
If in fact an unseaworthy condition is created by the ship -- by the stevedore as in Ryan, as in Weyerhaeuser, as in Crumady and as in Waterman, then clearly, if it can be shown and if the fact finder as in all of those cases did found that the stevedore created or caused the condition, violated the contract to inspect or correct as in Ryan where they would have done all of the stevedore's work, all of the shipowner's work then I submit sir in that circumstance caused by the ship -- the stevedore, the unseaworthiness, being the responsibility to ship, indemnity would follow.
But in this case, no one ever suggested that we caused the unseaworthiness of these bands and there was no basis for showing that we could have discovered any other -- any possibility that these bands were effective.
May I say one thing further and I'll sit down (Voice Overlap)
Justice Hugo L. Black: Was there any evidence to show that they could've discovered it?
Mr. Francis E. Marshall: No sir, and not only that the evidence is clear and again, I refer you to the bottom of page 6 because there are great numbers of page references but they're all very specific, every one of our own stevedores and every one of our experts testified they had never seen a band break or a bale fall on the vertical lift.
And Mr. Byrne challenged that issue but I submit, if Your Honor please, at page 22 (b), this was on a vertical lift and at the bottom of page 6, I have documented in this record 40 or 50 page references where that statement is supported by the fact.
I would like to now defer to Mr. McHugh, the counsel for amicus curiae of the National Association of Stevedores and I thank you.
Chief Justice Earl Warren: Mr. McHugh.
Argument of Martin J. Mchugh
Mr. Martin J. Mchugh: Mr. Chief Justice, may it please the Court.
The National Association of Stevedores appears as amicus curiae in this case to present an issue which we regard as important and which is not otherwise presented here.
It's the issue of safety insofar as it constitutes a part of the general maritime law or the admiralty law.
Now, I'd like to say at the outset that the association in its participation in this case is not concerned with who should bear the loss in any given factual situation as between shipowner and stevedore.
It is concerned, however, with a rule of law which we think will reduce accidents and thus reap to the entire shipping industry, shippers and stevedores alike an economic advantage.
Now, basically, the function of molding or creating admiralty law is the concern of this Court.
Mr. Justice Brennan and Mr. Justice Frankfurter have had occasion to remark recently that no law and no body of law as the judge made at its origin to such an extent as it's the Law of Admiralty.
Safety is an essential and important aspect of that corpus juris.
Safety will prevent accidents and we submit that it is as much a function of the admiralty law and indeed all law to prevent the happening of accidents as it is to recompense the wrong.
This Court noted that fact I believe in 1946, one of the extended to longshoreman, the very class of workers with which we are engaged here, the warranty -- the traditional warranty of seaworthiness theretofore owing only to seamen.
The Court said in the Sieracki against Sea Shipping decision that the maritime service imposes severe hazards on those who are in performance services -- perform in it.
Justice William O. Douglas: We don't sit to write law review articles on these things.
Mr. Martin J. Mchugh: Indeed not in this -- what I'm --
Justice William O. Douglas: (Voice Overlap) this is just a case for us to decide.
Mr. Martin J. Mchugh: Exactly, Your Honor but I believe that since you are concerned with the molding and creating of admiralty law, you are concerned with the – fashioning it in a way which will prevent accidents and that's my point.
I think that there has been misinterpretation and confusion in the courts below and particularly in the Third Circuit Court of Appeals in this case, insofar as the rules laid down in Ryan, Weyerhaeuser in particular and Crumady in particular are concerned in the field of maritime indemnity.
What has happened here, I do believe, is that the courts have shaped a rule which holds in essence that no matter what activity, innocent or otherwise, a stevedore has with a defective part of a ship, the shipowner will be entitled to indemnity.
Now this, I submit, is wrong because it will encourage shipowners to the -- continue to tender for loading and discharge unsafe equipment.
It will absolve of them any responsibility for the gear and equipment on their ships.
I do believe that an equal responsibility should be shared by both shipowner and stevedore for safety.
Now, Congress has entered this field by a 1958 Amendment to the Longshoreman and Harbor Workers' Compensation Act and vested in the Department of Labor Authority to promulgate rules and regulations in the longshore industry to promote health and safety.
But this doesn't mean, I suggest, that the Court should abdicate their traditional responsibility to promote safety too.
And I suggest that a rule which grants indemnity where a stevedore has just any association, innocent or otherwise, with a defective part on the vessel, a defective vessel, a defective condition on a vessel, is a rule which increases accidents.
It absolves the shipowner from the responsibility for safety.
We suggest that the confusion which has grown out of Crumady and Weyerhaeuser in particular should be clarified and what we propose is a rule which says in effect that indemnity shall be granted.
In all cases where the substantial cause of the accident resulted in a foreseeable injury arising out of a substandard performance by the stevedore.
In an area of activity where the stevedore's skill and competence should have been the major factor in preventing it.
In other cases, indemnity should be denied.
We say that such a restatement or re-clarification of the rule in Weyerhaeuser and Crumady will place equal responsibility on shipowner for his equipment and equal responsibility on stevedore for his activities.
Thank you Your Honor.
Justice John M. Harlan: Did Weyerhaeuser say anything contrary to that?
Mr. Martin J. Mchugh: No indeed.
Weyerhaeuser I believe says exactly what I say.
I say that Weyerhaeuser warned shipowners that you must be safe, when it used the term, you will be entitled to indemnity, absent conduct on your part sufficient to preclude it.
This was a caveat it seems to me that unless you live up to recognize reasonable standards of safety, you shall be denied indemnity, but it seems to me that the lower courts in some instances have confused this and I think have confused it when Crumady came along.
Crumady said that where a stevedore brings into play an unseaworthy condition, he shall be liable to the shipowner for indemnity, but it's important to note that in the Crumady decision, this Court observed that the primary cause of the accident was the negligence of the stevedore.
Now here in this case, the court below apparently paid no attention to the fact that the jury found this stevedore free from negligence, the shipowner guilty of negligence and having -- and guilty of tendering an unseaworthy ship.
Justice Hugo L. Black: May I ask you one question?
Mr. Martin J. Mchugh: Yes, Mr. Justice Black.
Justice Hugo L. Black: You're here for the National Association of Stevedores?
Mr. Martin J. Mchugh: Yes sir.
Justice Hugo L. Black: Has there been any substantial change in the contracts of employment between the stevedores and the shipowners since the Ryan case?
Mr. Martin J. Mchugh: I believe not sir.
My -- I haven't made an exact study of this but so far as we can determine, there has been no substantial change in the form of contract.
Now frequently of course, a study on this subject would be difficult.
Justice Hugo L. Black: What I meant, has there been any efforts, that case was based on an implied contractual basis?
Has there been any evidence to make a specific contract that would preclude imposition of indemnity?
Mr. Martin J. Mchugh: To a very limited extent and the effort has been substantially this, that where the party sit down to write a contract, they say that indemnity shall be granted in these circumstances and then define them, and then they continue and say, “These are all of the understandings implied or expressed between the parties,” and that has been an effort I believe to bypass their effect of claim.
Justice Hugo L. Black: I didn't find -- I didn't find any such clause in this particular contract.
Mr. Martin J. Mchugh: There is not sir, absolutely not.
Chief Justice Earl Warren: Mr. Byrne.
Argument of Thomas E. Byrne, Jr.
Mr. Thomas E. Byrne, Jr.: If the members of the Court please, I would first like to call your attention to the fact that on page 5 of our brief, we have a typographical error in the citation of a case about the -- just below the middle of the case -- of the page, we cite the case of International Drug versus Yankwich and we say that's in 349 F.2d and of course there is not yet a 349 F.2d, it is 249.
Justice William J. Brennan: What page is it?
Mr. Thomas E. Byrne, Jr.: Page 5 Your Honor.
Justice William J. Brennan: Thank you.
Mr. Thomas E. Byrne, Jr.: I would first like to dispose, if I may, of a procedural question which was raised in a reply brief served upon us last Friday.
That raises the question of whether there was a proper 50 (b) situation presented to the Court of Appeals in this case.
I would like to first say on this point, and this is, I'm addressing myself solely to the procedural point now, that there was here a request for, what we call in Pennsylvania a binding instruction, you will find it in the defendant's requests for charge, numbers 3 and 7.
We specifically asked the District Court at the end of our case or at the end of all evidence rather to direct a verdict in favor of Ellerman and against the Stevedoring Company, the third party defendant.
There was no separate paper for a rule 50 (b) motion filed and if under Cone and the Johnson case, we must file a separate 50 (b) paper then the point is correct.
The point raised in the petitioner's reply brief is correct because there was no 50 (b) as a separate motion paper filed.
We discussed -- we asked Judge Ganey for a directed verdict in writing and orally.
Now unfortunately, since this point was never raised either on the post-trial motion arguments before the Court of Appeals or in the petitioner's petition for rehearing before the Court of Appeals or in this Court -- in the petition for certiorari to this Court.
No one has printed specifically that portion of the record, in Third Circuit, we used an appendix system, no one printed those portions of the record where that was, but for example, at page 1140 of the original record, the statement appears by myself, if the defendant is liable on that basis, I think that is the clearest kind of a case for an award of indemnity over, and that is in the discussions among counsel immediately preceding the charge of Judge Ganey to the jury.
Again, at page 100 -- or 1113 of the original record, and again unfortunately not printed for this Court, I say, “Judge Ganey, I made a motion at the end of the plaintiff's case and I have handed it a written motion for binding instructions.
I renew the request but I am also 21 years old plus and I know that with the attitude of the Court of Appeals, I'm wasting my breath.”
That may not sound --
Chief Justice Earl Warren: What was that last --
Mr. Thomas E. Byrne, Jr.: I said I -- with the attitude of the Court of Appeals toward binding instructions, I'm wasting my breath and the judge said, “That's quite alright,” let the record show it is denied and again, I'm still addressing myself to that procedural question in the light of this point raised in the reply brief filed only on Friday.
I don't --
Chief Justice Earl Warren: Now, what do those add up to the things you've just read to?
Mr. Thomas E. Byrne, Jr.: Sir, they add up to this that there was a written request for a directed verdict for us, we in Pennsylvania called it a point for binding instructions.
The point of the decisions of this Court in Johnson and in Cone versus West Virginia Pulp and Paper seems to be that you have to call this matter to the attention of the district judge so that he will know what you want and he will have an opportunity to rule, consider and pass upon it.
And I'm simply pointing out to this Court that that was done in this case and that there was a motion for judgment notwithstanding the verdict made in this case.
And I am pointing to the fact that before the District Court on the post-trial arguments, it was said in the written briefs that this was the -- a 50 (b) motion.
So that I think sir that on that record, we may not -- let me put it this way, that I don't think it is the practice in Pennsylvania or the lawyers from Pennsylvania who practice before the federal court nor is it the practice in the federal court sitting in Pennsylvania to file a separate paper called a 50 (b) motion.
We file a request for binding instructions and we file a motion for judgment notwithstanding the verdict -- after a verdict has been entered and those are argued and this was clearly, forcefully argued to Judge Ganey on the post-trial motions.
It was called at that point, a point preserved under Rule 50 (b) and it was specifically so stated in the briefs and not controverted by the petitioner until Friday of last week.
Therefore, the Court of Appeals as we say was really exercising the judicial function.
It held that there was error in the District Court and that the District Court should have directed a verdict in favor of Ellerman and against Atlantic and Gulf at the trial stage and it therefore entered that verdict following appeal.
I really point this out because I don't want this case to go off on this procedural point.
The -- unfortunately, we did not have a chance to brief it because it was not raised, but that is the posture of it and I think that we fall outside the scope of the Cone and the Johnson decisions of this Court.
And now, I would like to address myself to the case as it comes to this Court as I see it on the merits.
I listened rather carefully to my opponent's argument and it seemed to me that we did not have presented the case in the posture which it is before this Court.
When the Court looks at the record and if the Court has the appendices before -- the record before it, you will see the type of operation which was going on here.
There are photographs taken at later dates of hooks and bales.
The stow, and the record is perfectly clear that this was all tightly stowed cargo, and as Mr. Justice Stewart suggested in one of his questions earlier, it had to be pulled out of this tight stow by these two hooks in each of two bands.
Now, there were four bands, a minimum of four bands on each bale.
There was no effort made by the stevedoring company, having pulled the bale out of its tight place in stow and dragged it and drag is the word used by the longshoreman witnesses at page 25 (a) of this record, dragged across the space till -- it was underneath the point from which it was to be lifted.
There was no effort made at that point to see whether damage had been done to this part of the packaging.
There was no effort made to take the hook out from under the two straps which had been used in the dragging operation and put them under the two hooks which had not been subjective to that strength.
It was after all that had taken place that this bale being hoisted out first one band broke and the second weight was all thrown on -- on a single band, it then broke and the bale fell.
It struck a ledge of cargo remaining in the hole and I think that part is clear and it rebounded and struck this longshoreman causing him injury.
Now in the charge in which this case was submitted to the jury and I don't think it matters what points were argued, I think that the question is to be decided depend upon what evidence is in the record and what issues were submitted to the jury by the charge of the Court.
The Court first submitted an issue of whether this was -- the ship was unseaworthy as to cargo.
Now, the Court of Appeals said, “We don't approve or we're going to follow the First -- Second Circuit's decision in another case and not extend the shipowner's -- the common carriers warranty as to the packaging around cargo.
We're going to decide this case on the basis of negligence.”
Then the Court of Appeals looked to what issues had been submitted to this jury for jury determination by the charge of the court to the jury.
Those three issues are -- they are -- appear at page 10 of the respondent's brief where briefly the use of the band and what method of discharging and the failure of the ship's mate to stop that method of discharging and a so-called safe place to work theory having to do with permitting cargo to remain under the hatch opening which cargo formed the ledge and which cargo was cargo going to another port.
Justice Potter Stewart: That's the so-called New York cargo.
Mr. Thomas E. Byrne, Jr.: So-called New York cargo.
Now at that point, I want to digress, Mr. Justice Stewart in particular to point out that while Mr. Marshall and the petitioner here make a great thing about this so-called New York cargo and why it was there, there is not a scintilla and I repeat there is not a scintilla of evidence that there is anything improper about having half of your hatch so that you have a wider demarcation for one port and one for the other, not a scintilla of evidence that this should have been taken out at some other port.
There is not any evidence and therefore, I say that the petitioner can't make some point out of the whole quote -- of simple argument.
If you look at the authorities aside from legal authorities on the way you should stow a ship to preserve its, shall I say overall integrity on a voyage, you don't want empty compartments next to full compartments.
That's why you have ships break at sea.
That's why you -- that's how you impose structural strain on a vessel which was not designed to carry.
You must, when you are going to sea, divide the weight which you are carrying and no one witness in this trial said that there was anything wrong with that.
As a matter of fact, when the Court looks at the record here and the testimony of the hatch boss, he testified that this split stow is, it is not along the waterfront, is frequently encountered and in a common carrier vessel, it necessarily must be frequently encountered and no one criticized that but the lawyers.
Now, I want to make that point.
Chief Justice Earl Warren: Is there anything in the -- in the evidence to indicate that while it might have been a proper procedure to -- to stow this New York and Philadelphia this -- New York and Philadelphia cargoes the way they were sort in -- in India having in mind that the New York cargo would come out first that it -- it was negligence not to take the New York cargo up first but to leave this overlap and -- and -- and create a hazard --
Mr. Thomas E. Byrne, Jr.: There's no such --
Chief Justice Earl Warren: -- in -- in taking out the Philadelphia cargo.
Mr. Thomas E. Byrne, Jr.: There is no such evidence and then let me explain this Mr. Chief Justice.
You see, if that were so then you would have the same condition in reverse when you're trying to take it out in New York.
If you were taking for example a cargo from one end and leaving in New York as you would necessarily do.
What was submitted to this jury in this charge, however, was whether this cargo in the square of the hatch and the words of the judge submitting it were should have been shifted or put out of the way.
Now that was a charge -- in the charge of the jury, that was a point submitted under which the Court said to the jury, “You may find the shipowner negligent not for the way in which it was originally stowed there but for not shifting it or putting it out of the way.”
That was a -- once you get the jury's answer to the unseaworthiness question and focus on the negligence question in this case, you find that there were three varies of negligence submitted to the jury by the trial judge.
One is this failure to put out of the way.
The other is the band hook method of operation.
Chief Justice Earl Warren: What?
Mr. Thomas E. Byrne, Jr.: The band hook, the use of this method and the third is the failure of the mate, the ship's officer to stop the work which was being performed by the expert stevedoring company which we are engaged to do the work and I think when you get to the guts of this case, that's exactly what you're going to find that there are three theories submitted to the jury.
The Court of Appeals examining the charge said this, “The answer to the -- or of the jury to the interrogatory dealing with the stevedore, all that demonstrates is that the stevedore did not create the condition.
Now, that is the language in which the district judge submitted the D1 versus D2 situation to the jury.
Did anything that Atlantic and Gulf do create the situation?
They ruled out or that language ruled out the whole theory of this Court's decision in Crumady versus The Joachim Fisser where you said that it operated upon it a condition preexisting and brought it into play.
Now, that was specifically called the attention of the trial judge that that language of his charge ruled that out but we -- all we have is an exception which the charge was not corrected.
So that the Court of Appeals examining the issues which the charge submitted to the jury found that the answer of the jury to that interrogatory didn't cover the whole situation because it only covered the one point.
It then examined point-by-point each one of the three negligence theories of plaintiff versus Ellerman and it found that as to each, there would necessarily have to be an indemnification.
In other words, if the Ellerman -- I'm sorry if Atlantic and Gulf's method of working was wrong, you could not hold Ellerman liable to the plaintiff without at the same time as a matter of law, graving Ellerman indemnity against the actor, the person who was utilizing the unsafe method.
Chief Justice Earl Warren: Mr Byrne --
Mr. Thomas E. Byrne, Jr.: Yes, sir.
Chief Justice Earl Warren: Can you -- can you tell us whether under the contract, the stevedore could or should have removed enough of the -- the New York cargo before taking the Philadelphia cargo out so as to have removed the hazard that cause this injury
Mr. Thomas E. Byrne, Jr.: Sir, under the contract, he would have been -- he would have been permitted even I think required and we would have had to pay him extra and it so states right in the -- in the contract and the judge submitted that issue to the jury because that's one of the points that was submitted to the jury, was Ellerman negligent in failing to shift or move out of the way.
Chief Justice Earl Warren: I understood -- I understood Mr. Marshall to say that under the contract --
Mr. Thomas E. Byrne, Jr.: He did say that.
Chief Justice Earl Warren: -- if they'd as much as touched this New York cargo and anything had gone wrong that they would have been absolutely liable for -- for any injury.
Mr. Thomas E. Byrne, Jr.: I understood Mr. Marshall to say the same thing Your Honor and I think he is quite wrong on that and I think you will find it that there is a provision in this contract.
Justice Felix Frankfurter: Which -- in what page.
Mr. Thomas E. Byrne, Jr.: Sir, I will -- may I give you the page after luncheon because it's a seven-page contract and I don't know where that is.
Chief Justice Earl Warren: And may I -- may I say this also to you before -- before lunch.
Mr. Thomas E. Byrne, Jr.: Yes sir.
Chief Justice Earl Warren: On your procedural question, you -- you discussed somewhat Pennsylvania cases.
Mr. Thomas E. Byrne, Jr.: Yes, sir.
Chief Justice Earl Warren: Would you -- would you mind giving us a little memo of the -- of the Pennsylvania cases on that -- on that subject?
Mr. Thomas E. Byrne, Jr.: No, I wouldn't want but I am not in -- I am not sir saying that Pennsylvania law controls.
I am not so arguing.
I am simply saying that the practice under Rule 50 as to Pennsylvania courts and lawyers is that you file a written request for a binding instruction before the charge.
Chief Justice Earl Warren: Yes.
Mr. Thomas E. Byrne, Jr.: And then if the verdict goes against you, you file a motion for a judgment notwithstanding the verdict after the entry of judgment within the ten days of that rule.
We do not file a separate paper in addition to those that we call a 50 (b) motion.
Justice Felix Frankfurter: But that -- but that controls -- but that's relevant in your mind to the point that Mr. Marshall made, isn't it?
Mr. Thomas E. Byrne, Jr.: Mr. Marshall has raised this judgment -- Mr. Justice Frankfurter in a reply brief and I am -- what I am trying to have explain to this Court is that the procedure we adapted is a compliance with Rule 50 (b) as it is interpreted in Philadelphia and in the Third Circuit and that's my point there.
Chief Justice Earl Warren: Well, are there state cases on that subject?
Justice Felix Frankfurter: That's not all.
Mr. Thomas E. Byrne, Jr.: Sir, I don't think the state cases would control.
Chief Justice Earl Warren: Well, are there favorable cases --
Mr. Thomas E. Byrne, Jr.: There are state -- there are state cases there are -- it's a point that's never been raised in the federal court.
Justice Felix Frankfurter: You said this is your practice.
That's what you said.
Mr. Thomas E. Byrne, Jr.: We say this is our practice.
Justice William J. Brennan: In the federal court?
Mr. Thomas E. Byrne, Jr.: Yes, Your Honor and I say we --
Justice William J. Brennan: And you're also saying that there's no -- there's no objection made to the replied brief (Voice Overlap)?
Mr. Thomas E. Byrne, Jr.: I'm also saying that --
Justice William J. Brennan: There's no point in this litigation until that time.
Mr. Thomas E. Byrne, Jr.: That is correct.
Justice William J. Brennan: Why would that go then?
Why would that change?
Mr. Thomas E. Byrne, Jr.: Why would -- what change -- if it -- it's not raised?
Justice Hugo L. Black: They didn't raise it until then (Voice Overlap)
Mr. Thomas E. Byrne, Jr.: Sir, if it goes to the jurisdiction of the Court of Appeals to do what it did, you've got to raise it.
It can be considered at any time.
I concede that --
Justice Hugo L. Black: Are you going to submit a brief on that point as to what would be the effects and why you say if the Johnson case and the other cases do not support the argument?
Mr. Thomas E. Byrne, Jr.: If -- if may, I shall.
Justice Hugo L. Black: And I would think that (Inaudible)
Chief Justice Earl Warren: Very well --
Mr. Thomas E. Byrne, Jr.: Alright sir.
Chief Justice Earl Warren: (Voice Overlap)
Mr. Marshall you may -- you may also file a memo on it.
We don't need a full briefing but if you'll point out to us the cases and the practice that you rely on.
Mr. Thomas E. Byrne, Jr.: You see, the -- I don't think that this Court's decision in Cone and the Johnson says that you have to file a separate paper called the 50 (b) motion because you wrote both of those decisions if I recall Mr. Justice Black and in both of them, you speak of a motion for judgment notwithstanding the verdict or a judgment N.O.V. and that we did file in this case.
And that --
Justice Hugo L. Black: We proceeded as I recall it about a motion specifically setting -- setting out the specific reasons why the -- you are asking for directed verdict.
Mr. Thomas E. Byrne, Jr.: We do that in our request for charge and in the Johnson case, you point out in a footnote that that is the Pennsylvania practice and if the federal rules seem to adapt the Pennsylvania practice which is in Pennsylvania is by statute, but I will file a memorandum on that point.
I do want to discuss the evidence in this case because I think it's important in view of the fact that petitioner doesn't just ask for reversal in this particular case.
He asks that this Court state a new rule of law.
He does it under the guise of requesting that this Court define what it means or what it meant in the Weyerhaeuser decision when it used the term something about conduct sufficient to precluding conduct of the shipowners, sufficient to preclude indemnity.
Justice Hugo L. Black: Now that's what he asked.
Are you asking -- will you take the opinion of the court below that repre -- what you're saying now and (Inaudible) as a direction to enter a judgment against the stevedore or as simply a reversal of that judgment for a new trial?
Mr. Thomas E. Byrne, Jr.: No, sir.
I am taking it as the former.
I am taking it as a reversal and a direction to the court below to enter judgment.
Justice Hugo L. Black: If that's true, you would have to come within 50 (b), wouldn't you?
Mr. Thomas E. Byrne, Jr.: I would have to come within 50 (b).
Justice Hugo L. Black: But if it's not true, you could still rest on the fact as I recall it that you were entitled a new trial under that court.
Mr. Thomas E. Byrne, Jr.: Oh yes, I think under the Court of Appeals (Voice Overlap) --
Justice Hugo L. Black: That's the difference.
Mr. Thomas E. Byrne, Jr.: Yes.
But now, I say that the direction of the Court of Appeals is just what I asked them to do and what I asked Judge Ganey to do and that entered judgment in favor of Ellerman here as a matter of law.
And I say that we have complied with Rule 50 (b) and that I don't think that that rule requires when you have filed a request for binding instructions.
You have -- you have discussed, argued this matter to the judge who is going to charge that jury.
And thereafter, you filed a motion for judgment notwithstanding the verdict that you are --
Justice Hugo L. Black: And which you did -- which you did.
Mr. Thomas E. Byrne, Jr.: Oh, yes.
And we argued this to the district judge, Mr. Justice Black.
That I think was the point of the -- the reason for your decisions in Cone and Johnson.
You said that the rule contemplates that the district judge shall exercise his discretion on this point and I say that that point was clear -- was fully briefed and argued to Judge Ganey.
Now denied by him, surely it was but that it was before him, surely it was because we argued it and Mr. Marshall argued it, so that the reason why the Court reached the results it did in Cone and Johnson does not exist in this case.
I said that I wanted to go to the evidence here.
Here, you have a case where, and it is perfectly evident from the examination of the longshoremen themselves, that this stevedoring company did not instruct its men in the proper method of removing cargo such as this.
It was conceded at the trial that if you used the same strap to lift the bale that you used to drag it out that you were increasing the risk that that had been damaged in the drag out operation and therefore might break during the lifting operation.
It is clear uncontroverted andn Mr. Marshall's statement of the contrary notwithstanding, that you have somewhere between 3% and 5% of these straps will break during this operation and that one bale in 50 will fall as this one did.
Now, that's clear in this record.
Justice Hugo L. Black: That is however it's done, do I understand?
Mr. Thomas E. Byrne, Jr.: Now with this drag out --
Justice Hugo L. Black: The drag out.
Mr. Thomas E. Byrne, Jr.: Yes, yes sir.
Chief Justice Earl Warren: We'll recess now.
Argument of Thomas E. Byrne, Jr.
Chief Justice Earl Warren: Mr. Byrne, you may continue.
Mr. Thomas E. Byrne, Jr.: May I first answer some questions before recess, Mr. Justice Black, you asked me to point to that provision in the contract, if you will turn to page 151 (a).
Justice Hugo L. Black: 51?
Mr. Thomas E. Byrne, Jr.: 151 (a) sir.
You will find there a provision, extra labor to be charged for an actual cost plus 10% and so forth.
Now, if the extra work was required to be performed, I say that the Stevedore could and would and should have charged Ellerman for that service under the contract.
The question is whether it shall be the stevedore who shall determine what is necessary to be done to do this work properly, or whether it shall be the shipowner.
There has been much mentioned here this morning of the function of Mr. Quinn who was the vessels officer, a mate that you will find when you review the record here, that Quinn disclaimed expertise as a stevedore.
He had never done the work.
He did not purport to be an expert in this field.
He is an expert in certain fields but that is the whole division of labor if you will in this industry.
That the shipowner, once his ship arrives in port, engages an expert contractor who undertakes to do all of the work required in connection with the discharging of that vessel, and of course this Court has said to do it properly.
Now, this is not a new argument because in our brief, we point out the fact.
And this Court can verify it by looking at the original record in the case of Joseph versus Carter and Weekes Stevedoring Company.
They were two cases back about 1945.
They're cited in the brief, in which the stevedoring industry was attempting to be exculpated from a locally imposed taxation.
The same, almost identical stevedoring contracts were introduced by the stevedoring industry there.
They had two representatives pioneering for the industry in a test case before this Court.
And they there argued that the contract very, very similar to the one before the Court in this case.
And if I may interpolate something there, Mr. Marshall said that this contract was prepared by the shipowner.
That is not my understanding.
My understanding is the converse, but I do point out to the Court that there is no evidence one way or the other and no assumption I think just can be made one way or the other as to who prepared this document.
But I do want to point out that this Court heard argument from the stevedores 15 years ago, that this contract which they undertook placed them an entire charge of and made them a part of the transportation process, and that this was their job to do the entire work.
And that's no more than this Court has said that they shall do and do properly in the line of cases commencing with Ryan and the last one of which is the Waterman case.
Chief Justice Earl Warren: Whether the Court holding those two cases?
Mr. Thomas E. Byrne, Jr.: Sir they held -- they upheld their claim that they were engaged in commerce and were therefore exempt from the locally imposed taxation.
The state -- the City of New York was not permitted to tax them.
And that was their argument there under these same contracts.
Chief Justice Earl Warren: And it depends upon this section which you've just talked about.
Mr. Thomas E. Byrne, Jr.: It depends upon the interpretation of this contract.
In other words, whether they do actually takeover, perform and control that the performance of the unloading operation, or whether they shall be under the direction and control of some ships officer.
They're arguing here, Mr. Chief Justice that a ships mate should direct the intimate detailed method of work which this expert stevedoring company shall perform.
They are arguing here, for example, that if this ledge that was created during the discharging operation, which was submitted to the jury as to whether it should have been moved out of the way, they are arguing that they should not make that decision that some ships officer who is not an expert stevedore, who can't possibly oversee the work going on, being done in five separate holes of a ship, down low in the bowels of the ship, can't possibly see all this.
They are arguing that the ship's officer owes the expert stevedore this obligation, to tell him whether he should use a hook, or whether he should put a net, or a cargo trail that what is called a pallet in the industry.
They are telling -- they are arguing that this is a duty which the costumer having hired the expert to perform the job must direct at its parallel.
And we say that this Court's decisions beginning with Ryan have properly interpreted the respective duties of these two parties.
And we say that this is nothing more nor less than the interpretation of these contracts of the industry itself urged 15 years ago.
I want now to --
Chief Justice Earl Warren: May I ask this Mr. Byrne?
Mr. Thomas E. Byrne, Jr.: Of course sir.
Chief Justice Earl Warren: Suppose this Philadelphia cargo had been covered by the New York cargo in the -- in the hold.
And under this contract, who would have determined how -- how that -- how it was to be handled in order to unload the ship.
Would it -- would it just be up to the -- to the stevedore to do whatever was necessary and -- and accept more responsibility for it or would it be the responsibility of the ship to tell him what they should do with the New York cargo?
Mr. Thomas E. Byrne, Jr.: Sir, if he is the expert, as we say he is, it is his obligation to determine the proper method of doing this work.
Now, I want to make one thing clear as a matter of practice with a common carrier and if you -- we have cited certain authoritative works in the field outside law books.
You do not load properly a cargo in layers, you low -- you put it in forward section after section.
That is necessary by the trade in which the common carrier is engaged.
He has a number of ports of call.
He must in loading his ship.
He cannot load everything in -- in one port on the bottom and at the next port on top because of the mere factual -- what do I want to say, the -- the facts of the business itself because you cannot say if you are loading cargo in Calcutta first for example and then you were going to proceed westward to other ports that you are then going to discharge that cargo in a particular rotation.
You may have to discharge the cargo loaded at the second port before you discharge cargo loaded at the first port, so that you do not cover it up as a matter of practice.
And most -- more important, no one has said so but the lawyers here and the authorities will bear out what I have just said, and there is no evidence in the case on the point.
Chief Justice Earl Warren: May I ask you this?
Mr. Thomas E. Byrne, Jr.: Of course.
Chief Justice Earl Warren: In some parts of the world the -- the sea -- the seaman themselves do the unloading, do they not?
Mr. Thomas E. Byrne, Jr.: Sir, may I respectfully point out that this Court had said so that there is substantial authority that that is a misstatement of a historical fact.
There is some slight reference to it in the petition for certiorari which was denied in number 284.
It has been the subject of study since this Court based its Seas Shipping Company versus Sieracki decision upon it 15 years ago.
There is law review material in the course of preparation after a considerable amount of history research.
So that, while this Court had said so, I would disagree that this Court in its -- in its saying of history has reached an accurate factual conclusion, I don't think that's the question of law at all.
I think that's a question of fact.
Chief Justice Earl Warren: Well -- well, that is a question of fact.
But I was just wondering if that was the fact that in many places throughout the world, seaman do unload the ship if that wouldn't in it of itself make them also experts in -- insofar as unloading ships are concerned.
Mr. Thomas E. Byrne, Jr.: Sir in recorded history, there are some few instances and I say very few instances, where the man who actually sail the ships load or unload them.
Now, they may where they are out, let' say, well a data in -- two years before the mess.
One instance, he was out on the California coast where there was no local labor around but there's been local labor doing this since recorded history.
We -- in this -- if the Court cares to refer to that now discarded petition for certiorari, you'll find the authorities there goes back to Rome, there were stevedores there.
And the members of the crew did not as a rule, have anything to do with cargo operations and I think that the -- the inconsistency of so stating is demonstrated by the references that this Court has made to the -- as I recall it, use the well-known propensities of seamen when it extended the doctrine of maintenance and cure in Standard Oil Company versus the name escapes me --- Jones and Waterman, there were two cases Jones versus Waterman.
I think the Court has been inconsistent on its fact statement there but that's not a part of our case sir.
As a practical manner in the navigation of a ship, you could not for example that Judge Ganey having charge this jury that Ellerman could been -- could've be found negligent because it fail to put this so-called New York cargo out of the way, or put it aside.
It could not have been done at sea.
You can't imperil your entire ship I suggest by taking your crew from its job of navigation to handle cargo.
You can't -- you shouldn't open up your hatches at sea because then you run the risk of damage to cargo, so that as a practical matter sir, this would have to be done by stevedore import or not done at all.
Justice Hugo L. Black: I don't -- I wonder how far your argument here.
I don't know this.
Suppose the ship for they have on it large number of barrels, such a condition that when you reach down to get one, it's liable to make the others fall on in that.
Do you mean that the ship could say that that's the stevedore's work and we're not liable even though he gets hurt from that condition which had been on the ship?
Mr. Thomas E. Byrne, Jr.: We haven't talked about that sir.
Justice Hugo L. Black: I didn't think so --
Mr. Thomas E. Byrne, Jr.: No.
No, no, no.
We're not talking about that.
We are talking about the duties inter se of the shipowner and the contractor.
Justice Hugo L. Black: But even then -- even that was the duty of the contractor to move it and move it in the most careful manner --
Mr. Thomas E. Byrne, Jr.: Yes.
Justice Hugo L. Black: -- you wouldn't say that under those circumstances, a shipowner could escape liability, would you?
Mr. Thomas E. Byrne, Jr.: I have not said that at any --
Justice Hugo L. Black: Then that's stevedoring.
Mr. Thomas E. Byrne, Jr.: I -- I've not said that --
Justice Hugo L. Black: -- or get indemnity.
Mr. Thomas E. Byrne, Jr.: Now, what are the facts of your hypothesis that this --
Justice Hugo L. Black: The hypothesize case was that there's some barrel there, and if you touch one of them, some of the others roll over and hit a man who is working there where it has to be to do it.
Mr. Thomas E. Byrne, Jr.: Oh that -- if the shipowner was entitled to indemnity in that situation sir, it would have to be as against the loading stevedore who did it so improperly that that would happen.
But there's no evidence in our case before this Court of any improper loading.
Everyone conceives that this cargo of bales.
Justice Hugo L. Black: I understood there was an argument which may or may not have a validity to do it.
You mean I have to reach it.
These bales were loaded in such a way that if you unload them at New York for instance, you're more liable to be hurt than you were -- if you unload them in Philadelphia.
Mr. Thomas E. Byrne, Jr.: No, I didn't so understand it sir.
My understanding of the criticism and I again say it's only lawyers criticism is this, if this rostrum here is a hold of the ship, the front part was loaded with cargo for New York and the after part with cargo for Philadelphia.
Now, you are necessarily going to create a ledge if you unload one, before you unload the other, now that's perfectly true.
But this is the way in which a ship is properly loaded.
And I'm saying to this Court that there is not a scintilla of evidence in this record that that method of what is known as a split hatch is improper, per se dangerous, or that there's anything else wrong with it.
Now the District Judge did submit to the jury a question of whether Ellerman was negligent in failing to order the stevedore to move out of the way the bales under the opening which formed that ledge.
Now, I say, in our position I would say it probably depends upon it.
I say sir, that if that was a dangerous condition which was gradually developing as the work progressed so that someone should have done something about it.
I am saying that it is the stevedore who should do something about it because he has the man there, he has the equipment and he is the expert.
The ships personnel could not, as a practical manner, do it at sea.
Now, I think where the Stevedore's argument leaves it on this point is that in addition to employing contractor A, Atlantic and Gulf to unload this cargo, we should also have engaged another and separate independent cargo expert, stevedoring company to make the place safe for Atlantic and Gulf and prevent Atlantic and Gulf from creating a condition which was unsafe, which unsafe condition did not exist when the work started.
Justice Hugo L. Black: If you leave out the word creating that would be alright, wouldn't it, from -- against here.
Stevedore creating it -- are you familiar with our case?
Mr. Thomas E. Byrne, Jr.: Yes I'm familiar with it.
Justice Hugo L. Black: We have one several years ago and you could probably remember the name of it.
As stevedores loaded the ship at New York, as I recall it, and went on to Boston.
Mr. Thomas E. Byrne, Jr.: Weyerhaeuser.
Justice Hugo L. Black: Which one?
Mr. Thomas E. Byrne, Jr.: Weyerhaeuser sir.
Justice Hugo L. Black: Yes.
Mr. Thomas E. Byrne, Jr.: That -- that's only one instance.
You see, the Stevedore can breach a duty which it as a contractor owes to its costumer in more ways than creating an unsafe condition.
If, for example, its method of performance brings into play an unsafe condition and that was the factual situation before this Court in the Crumady versus Fisser case in which I believe Mr. Justice Douglas wrote the opinion.
And there used the phrase that the stevedore must indemnify the shipowner, in other words has breached his contract with the shipowner if the way in which he works brings an unsafe condition into play.
There is a Circuit Court of Appeals decision cited, a American President Line versus -- it's a Ninth Circuit case where the -- there was a hatch which had a defective -- I'm sorry a hatch beam which had a defective lock on it.
The defect was called to the attention of the stevedore by the ship's officer.He did -- he nevertheless did nothing about it.
And during the course of the unloading operation, somebody bumped the beam and because it had no lock, it dropped and injured someone.
Now, the courts always have said that where you so perform that you bring into play a dangerous condition of which you as an expert must know it's dangerous.
Now, I do not speak of the latent unsafe condition, a latent defect.
But it -- surely if anyone should recognized what is unsafe, so far as a discharging operation on board a ship is concerned, it should be the stevedore, the expert in this business.
And all that the Court of Appeals has done here is to say, “Plaintiff recovered against Ellerman upon one of three theories because that's all that the District Court in its charged submitted to the jury.
And upon each one of those three theories if Ellerman was negligent, then as a matter of law, that constituted a breach of the Stevedore's contract and the stevedore having breached it should indemnify Ellerman for the damages caused.
Now, true it is that in the District Court level, the Ellerman of unseaworthiness was submitted to the jury, the Ellerman of unseaworthiness being whether or not the package which this -- this banding around the bales should or should not have broken.
And the Court of Appeals said, “We do not decide this case on the basis,” because that involves an extension of the doctrine of seaworthiness from the ship to someone's cargo and you are then imposing liability upon shipowner who is a common carrier for the packaging around cargo and the courts and the doctrine have not gone that far.
This is a negligence case said the Court of Appeals and we will so regard it that if it is a negligence case, and then indemnity follows as a matter of law.
And that's all that the Court of Appeals has done.
Chief Justice Earl Warren: May I ask you Mr. Byrne, in this -- in this case, if we were to assume that the shipowner had permitted this ship negligently to be stowed in the way that it -- that it was stowed in this -- in this case.
And -- and then the stevedore unloaded it according to normal standards in that business and the man was injured as -- as this man was injured in this -- in this case.
Would there be any indemnity over at that time?
Mr. Thomas E. Byrne, Jr.: Not if you assume your original premise.
Chief Justice Earl Warren: Yes.
Mr. Thomas E. Byrne, Jr.: That it was negligence to load it this way, no.
Chief Justice Earl Warren: Yes.
Mr. Thomas E. Byrne, Jr.: But I wish to point out sir, there is not a scintilla of evidence in this record that this is improper stowage, that it is wrong stowage, that it is inherently, dangerous or dangerous to any degree when properly handled.
Chief Justice Earl Warren: Yes.
I wasn't --
Mr. Thomas E. Byrne, Jr.: Yes sir.
Chief Justice Earl Warren: -- I wasn't inferring.
I was just --
Mr. Thomas E. Byrne, Jr.: I would drive that point home.
Chief Justice Earl Warren: -- I'm just assuming, I was just assuming.
Mr. Thomas E. Byrne, Jr.: If you assume that my answer is effective.
Chief Justice Earl Warren: But you could be -- you could be liable under those -- would be liable under those circumstances.
Mr. Thomas E. Byrne, Jr.: Oh if we negligently loaded it, yes sir.
Chief Justice Earl Warren: Yes, yes.
Mr. Thomas E. Byrne, Jr.: But I say that you can't assume that as a matter of law, because there's no evidence at all in this record to support such a question.
Justice Hugo L. Black: May I ask you?
Mr. Thomas E. Byrne, Jr.: Of course.
Justice Hugo L. Black: To find just how far your statement goes and see what is the difference between that.
Are you saying that there's no evidence of any kind to show that this was stowed in a way, which made it more dangerous for the man in New York who followed the ordinary course of procedure to unload it?
Mr. Thomas E. Byrne, Jr.: Sir, I am saying that there is no evidence in this record that this is improper.
Now, possibly --
Justice Hugo L. Black: Improper?
Mr. Thomas E. Byrne, Jr.: Yes.
Justice Hugo L. Black: Well I'm -- I'm talk -- you're just limiting it to the abstract evidence that there's no evidence to show that that's the improper way to load it or that there's no evidence to show that that was the improper way to load it under the circumstances which it was foreseeable it might be taken out by stevedore.
Mr. Thomas E. Byrne, Jr.: There's no evidence on that point at all.
Justice Hugo L. Black: That's what I was talking about.
Mr. Thomas E. Byrne, Jr.: That it is solely the argument of lawyers, says that “This makes it more dangerous.
This is improper.”
But there is no evidence on the point sir.
And as I say the authorities will tell you if you look at them why it is the proper way to load the vessel.
Justice Hugo L. Black: But, we wouldn't be governed by authorities on that but we have to go to its evidence that's showed by --
Mr. Thomas E. Byrne, Jr.: There is no evidence.
Justice Hugo L. Black: -- people familiar with this -- I understand -- I understand that argument, but I don't understand why we did it from authorities?
Mr. Thomas E. Byrne, Jr.: We have cited such books as the Department of Commerce has a text on loading and unloading of vessels.
I forget the exact title of it, it's cited but they -- they tell you this is the way to load a ship in order to keep your ship in balance during a sea voyage, avoid having particular strains.
Remember, we're talking about the very bow compartment of a vessel.
Justice Hugo L. Black: But if there were --
Mr. Thomas E. Byrne, Jr.: Which --
Justice Hugo L. Black: -- experts, so-called expert with experience, who would testify to what you said, you would not --
Mr. Thomas E. Byrne, Jr.: You're right.
I would not be so arguing.
But that is not this case.
In conclusion, I -- I wish to say and perhaps my argument has been disjoined but the ground which the Court of Appeals based its decision, upon which it based its decision, is that there can be indemnification as a matter of law where the facts weren't.
And that the jury finding, in answer to an interrogatory, array the stevedore in this case was erroneous not that the finding was erroneous but that the charge of the Court was erroneous and that the interpretation of this contract was not a jury question, and that all of that interrogatory really determined was that Atlantic and Gulf Stevedore had not created this condition.
We never so contended and we say that since Atlantic and Gulf was the actor here, then necessarily, if anyone was negligent, it had to be Atlantic & Gulf.
Justice Charles E. Whittaker: May I ask you please sir?
Mr. Thomas E. Byrne, Jr.: Sure.
Justice Charles E. Whittaker: Could it be consistently found by a jury under the evidence here that the presence of the New York bales and the manner of unloading of the Philadelphia bales did not consist of any breach of duty or failure on the part of the Stevedore, could the jury find in these circumstances as an issue of fact that the Stevedore was not guilty of any improper breach or could -- method could?
Mr. Thomas E. Byrne, Jr.: Could but did not.
Could but did not.
That was --
Justice Charles E. Whittaker: Now, is there any other -- is there any other way to rationalize the verdict of the jury done by such a finding?
Mr. Thomas E. Byrne, Jr.: Sir, I think that you have to look at the charge and of issues which were submitted to the jury for determination, and that was not submitted to the jury for determination as between Ellerman and the stevedore.
That was submitted to the jury as to whether that could have consisted of negligence of Ellerman vis-à-vis plaintiff but not in the other case.
The other case, the contract case is between D1 and D2 was submitted only on the question of whether the stevedore created the condition.
Have I answered Your Honors question?
Thank you sir.
Chief Justice Earl Warren: Mr. Marshall.
Argument of Francis E. Marshall
Mr. Francis E. Marshall: If Your Honor please, I have five more minutes.
I would like to take up that last question.
Mr. Byrne just said the jury could but didn't.
The specific answer in Your Honor's question is that when the jury answered the question, did the fault of Ellerman arise out of any failure on the part of Atlantic and Gulf to do its work in accordance for its contractual obligation?
The jury said, “No.”
And Mr. Byrne by his answer creates the impression what the jury found against us.
That is not true.
The jury specifically found that we did not breach our contract.
Now, I would like to assert, if Your Honors please, there won't be any misinterpretation as to Philadelphia lawyers in their practice.
In the first place, Mr. Byrne was handed a copy of my motion to dismiss and a copy of my motion for a directed verdict which specifically set forth the reasons and support thereof.
And if Your Honors would be kind enough to look at the docket entries.
At page 3 (a), there is entered in your official record, third-party defendant's motion to dismiss and motion for a directed verdict file.
If Your Honors would be kind enough to look at page 186 (a), Mr. Borowsky, attorney for the plaintiff says, “Your Honor, may I have exceptions where we have asked for a directed verdict?”
We're in the federal court.
Rule 50 (b) says, “As a prerequisite to a judgment N.O.V. you must file a motion for a directed verdict setting forth specifically the reasons therefore.”
And for a very good reason, this calls the judge -- the trial judge to attention so that he can decide whether or not he could submit the issues to the jury and still reserve judgment on a formal motion for judgment and it will be filed within 10 days.
We follow ended here to that practice.
Mr. Byrne tried this case if Your Honors please with no reference really to the third-party defendant.
All that he has said here is there was no evidence that we did anything wrong, there was no evidence that we did this, there was no evidence that the stow was improper.
This has already been decided.
Mr. Byrne filed a motion for judgment N.O.V. as to the plaintiff's case and it was considered fully and lost.
The Circuit Court affirmed and your honorable Court denied certiorari.
Now, if in fact there was evidence on which the jury could find negligence against the shipowner, that's already foreclosed.
The verdict's been paid, as it's suggested by Mr. Byrne in his brief.
Now, so there won't be any further mis -- misapprehension.
Mr. Byrne created the impression that we sort of trapped him last Friday with a replied brief.
Well of course we have to file a reply brief, if Your Honor please, when Mr. Byrne submits a brief to Your Honors and two-thirds of which comes under this heading appropriate motions under Rule 50 (b) having been made to the res -- by the respondent, the legal questions were preserved.
We submit as we do in our reply brief, this Court may very well -- not even considerable as two-thirds of this brief, and we had a further reason for calling this to the Court's attention.
Mr. Byrne was gracious enough to stand up here this morning, tell Your Honor for 20 minutes that he really filed a point for binding instructions which under the badge case in the Third Circuit decided in 1960 says, “You cannot file a point for binding instructions, mixed up with a lot of other points and expect the court to treat it as a motion for directed verdict where you got to set forth the specifics.”
Now, Mr. Byrne in his brief told Your Honors at page 3, the respondent here complies with all of the requirements of R -- F.R.C.P. 50.
It moved for a directed verdict in its favor upon its cause of action for indemnity against the petitioner.
And to examine to the legal ques -- examination legal question does preserved is not arguably a violation of the Seventh Amendment.
If Your Honors please, he raised the 50 (b) issue and not us and in aid of this Court, we called it to Your Honors attention because I think you would want to call to your attention.
And may I say further, if Your Honor please, at page 28 of this record -- of the respondent's brief, he says, “The petitioner ignores completely the fact that the jury's answer in interrogatory, asking the jury to determine whether respondents fall to rose out of any failure on the part of Atlantic and Gulf” was predicated upon a charge which instructed to the jury and then he quotes half of page 29, “If there is any liability which respondent owe to the plaintiff, that condition was created by Atlantic, that is your criteria.”
Mr. Byrne did not paraphrase that quote by saying as the Court did, Ellerman argues to you that if there was any liability, he submits it to this Court as though this was an absolute charge by the judge when in fact all he did was to quote Mr. Byrne's contention.
I say if Your Honors please, this issue is whether or not a court and a jury having properly decided the case after a 10-day trial under a full charge, whether or not the Circuit Court could pick one of three possibilities, one of three possibilities and say the following.
And I'm now quoting for -- from the Court's opinion on page 227.
Now, bear in mind, there were four issues of negligence.
The Court said, “If it was negligence on Ellerman's part, if it was to permit Beard to work in an unsafe place, it was equally negligent for Atlantic to handle the cargo in charge created an unsafe place.”
Now, I say to Your Honors, just as I -- I don't know which of the four grounds.I say to this Court -- this honorable Court that Judge Kalodner has no right to select one of four grounds and say, “If it was this, Atlantic isn't -- is obliged to pay indemnity.”
Suppose it was one of the other grounds, suppose the jury decided that it was improper (Voice Overlap) --
Chief Justice Earl Warren: I think we got that -- I think we got that point you're arguing before your time is considerably up --
Mr. Francis E. Marshall: Thank you very much.
Chief Justice Earl Warren: -- Mr. Marshall.
Justice Hugo L. Black: I'd like to ask, if you would submit to us, it seems to me a direct dispute between you and opposing counsel as to whether there was evidence on which a jury could have found the way this -- whether the stowage took place resulted in a foreseeable name into a stevedore who is working on it.
Mr. Francis E. Marshall: May I --
Justice Hugo L. Black: I understood you to say there was evidence and he said there's none.
Mr. Francis E. Marshall: If Your Honor please, I will say to you there is no direct evidence.
That could properly be inferred.
There is no use of -- submitting a supplemental brief.
I've gone over this record to find.
However, this was argued to the jury and this was charged to the jury.
It was an issue presented.
There is no specific evidence.
But again, that is in plaintiff's case against the shipowner and Mr. Byrne offered no evidence to show we were at law.
Thank you very much sir.
Rebuttal of Thomas E. Byrne, Jr.
Mr. Thomas E. Byrne, Jr.: Mr. Chief Justice Warren you (Voice Overlap) --
Chief Justice Earl Warren: Yes, Mr. Byrne?
Mr. Thomas E. Byrne, Jr.: -- file a memorandum on a 0.50?
Chief Justice Earl Warren: Pardon me, you may if you wished to do so.
Mr. Thomas E. Byrne, Jr.: Would Your Honor set a time?
Chief Justice Earl Warren: Oh, we don't want a brief.
If you just -- if you just give us the authorities you rely on and do it latter quickly so we won't be held at --
Mr. Thomas E. Byrne, Jr.: By the end of the week.
Chief Justice Earl Warren: -- in the consideration of it, that's all Mr. -- Mr. Byrne.
Mr. Thomas E. Byrne, Jr.: Thank you.
Chief Justice Earl Warren: Thank you gentlemen.