ATLANTIC COAST LINE R. CO. v. ERIE LACKAWANNA R. CO.

Argument of E. Barrett Prettyman

Chief Justice Mr. Chief Justice Berger: -- arguments in 71-107 Atlantic Coast line and Erie Lackawanna.

Mr. Prettyman, you may say whenever you’re ready.

Mr. E. Barrett Prettyman: Mr. Chief Justice, may it please the Court.

Yesterday, I was naming some of the problems that would face the court, if contribution were now to be allowed as a general proposition and I was pointing out that the first problem of course would be the Harbor Workers Act and I was saying that the Erie and Atlantic are not joint tortfeasors owing a common duty in tort to Benazet, the injured party because while Atlantic owes that duty to Mr. Benazet , Erie's duty is quite different, mainly to pay compensation under the Act.

I want to make it clear of course that Benazet never sued Eries in this case.

Benazet sued Atlantic and Erie was in pleading.

Therefore, even if the contribution is not absolutely barred as a general proposition, you must then decide whether the Act, in view of the very clear language nevertheless makes Erie somehow subject to contribution.

Now, the second problem I'd like to point out is that if you said contribution was somehow available, what do you do about the conflict between contribution and Erie's own Right to Indemnity in this case.

Of course it was not appropriate in the Trial Court here to submit to the jury, Erie's claim for indemnity because under Erie's theory neither under state law nor Maritime Law nor any other law, did it owe anything, and therefore, the question of indemnity never arose.

But if you were now to say the contribution, contribution was available to Atlantic upon remand, Erie could, we submit, obtain indemnity against Atlantic as the real party at fall.

Now, if I may, ask the Court's indulgence to turn to page 13 of the joint appendix.

This is the Atlantic's complaint against Erie and in paragraph 6 there on page 13, you will see what they charged Erie with.

This is all they charged Erie with and this is all -- the only reason Erie got into the case.

In plain language, in paragraph 6, they charges with nothing more than a failure to inspect.

Now, you have held in Ryan and (Inaudible), repeatedly, “where there is a duty of seaworthiness on the part of the ship owner, the ship owner can then implead the party really responsible for the accident if the ship owners' only duty was to inspect and can obtain indemnity.”

That's precisely our situation here.

They claim we failed to inspect.

We would show that this was their car, that over two-year period it became in terrible shape and they didn't do anything about it, and so forth and we would say that we are entitled to indemnity here.

Justice Byron R. White: What's the view of that basis for the indemnity toward a contract?

Mr. E. Barrett Prettyman: The basis for the indemnity in this case would probably be both.

It would be a duty on behalf of the owning line in contract, not to pass along its own car to a connecting carrier when it was not in proper shape and in tort for imposing upon others a defective car.

It would might well be both or either.

Justice Byron R. White: Where do you think our cases put the indemnity on --

Mr. E. Barrett Prettyman: I think indemnity is usually a contractual indemnity or warrant, either contractual warranty, but the lower courts Your Honor have now developed a theory of, of sort of tort indemnity or quasi contractual indemnity and whether that would apply here and whether this Court would accept that, I don't know.

But in view of the fact that I think we could recover under either theory, I don't think it controls here.

In any event, under your prior cases, since we would clearly be entitled to the indemnity against Atlantic, now what do you do with the conflicting claim of contribution whereas the parties would somehow split the judgment 50-50 or otherwise and our claim for complete indemnity, that's the next point you would have to resolve here.

Then you come to the problem of the conflict between various statutes here.

As you remember in Halcyon, one of the reasons the Court didn't want to say there was contribution was that Congress had passed all these other statutes and that contribution was somehow going to fit into the pattern established by Congress.

Just to give you an example here, there is a Limitation Liability Act and we would be limited to the value of the car flow and to the cargo, which is not in the record, but I am told that it's somewhere around $34,000, $35,000, $40,000.

Now, what do you do?

If you're going to say there is a 50-50 split, we owe 100,000 but you have got the Limitation Liability Act, we only owe 35,000 or 40,000, what about the Harbor Act?

You are going to have to work this contribution in somehow to all these other statutes, is that a problem?

There are other problems which unfortunately I don't have time to go into such as what the proper split would be.

We think the Court of Appeals' opinion in Halcyon ought to control or ought to be strictly based on fault and not 50-50 and so forth.

They're a number of problems which you would have to reach.

In conclusion, let me simply say that to grant contribution now after 20 years of Halcyon would have an extremely unsettling effect on Maritime Law generally.

It would throw out the carefully drawn line between indemnity and contribution which has been established by this case and so many cases and it would in fact create a conflict between the two.

It would dilute the owner's responsibility to correct effects because from their standpoint, let's face it, the way these railroad cars go by the luck of the draw, this car is probably going to end up on somebody's else's line rather than theirs, and therefore, if you're going to dilute responsibility around among the various lines who had the car or even share it with the one where the accident happen to happen, so much the better for the owning line.

Chief Justice Mr. Chief Justice Berger: Did I recall, you were saying Mr. Prettyman that 49 different carriers had handled this car?

Mr. E. Barrett Prettyman: During the time that the -- there was testimony that the defect had taken at least two year post effects, and it had taken at least two years to develop.

The eroded board and the fissure in the brake equipment itself, could not have occurred overnight.

That it took at least two years for that to develop.

It developed slowly and that during that time, if the car had been properly inspected, these defects would have been discovered.

During that two year period, 49 different railroads had had this car in their possession.

Yes Sir!

Chief Justice Mr. Chief Justice Berger: Thank you.

Mr. E. Barrett Prettyman: It would impose on employers in direct contradiction to the clear and unmistakable language of the Harbor Workers Act, a duty to pay not only compensation, regardless of fault, but an additional judgment based on what the two Court of Appeals have passed.

And with that, unless you have questions, and I think the judgment clearly ought to be affirmed.

Chief Justice Mr. Chief Justice Berger: Thank you Mr. Prettyman and Mr. Milburn.

You have four minutes left.

Argument of Devereux Milburn

Mr. Devereux Milburn: Mr. Chief justice, may it please the Court.

I would like to commence this rebuttal period by just reading two sentences which I think are very important in this case, and they come from the questionnaire presented by Judge Cooper to the jury.

Chief Justice Mr. Chief Justice Berger: Where in your Appendix are you?

Mr. Devereux Milburn: Page 62 Mr. Justice.

Chief Justice Mr. Chief Justice Berger: Thank you.

Mr. Devereux Milburn: Question 6; If you find the Atlantic Coastline railroad is liable, was the Erie Lackawanna railroad also negative.

Answer, Yes.

If so, was such negligence, a substantial factor in bringing about plaintiff's injury.

Answer, yes.

Now Judge Cooper in his opinion also found that Erie was negative -- pointed out the jury had so found and the Erie's negligence was approximate cause as was Atlantic's.

Judge Cooper found not that there was no intervening cause as was such stated yesterday, but that there was no superseding cause and that we admit.

There was no superseding cause, we were approximate cause as was Erie.

Now we seem to be turning up here as the bad guys in this, the only one's who were negligent.

Erie had solely a duty to inspect.

Well, I might call Your Honor's attention to a case cited in our petition for certiorari on page 6, Chicago Rock Islandrailroad against Chicago North Western railroad in the Eighth Circuit and I think that that case illustrates pretty clearly that the primary responsibility for an unsafe car, lies with the railroad upon whose tracks, the unsafe car is at the time of the accident.

I might point out that this car was on Erie's tracks at the time of the accident.

Chief Justice Mr. Chief Justice Berger: Of course Mr Milburn, I suppose you could hypothesize a situation where a car had, just within seconds, arrived on the track of the carrying road and they had taken over responsibility and the negligence, the injury or damage would occur right then, So that's a rule, that's a proposition that would have to be applied with some qualifications.

Mr. Devereux Milburn: With some qualification Mr. Chief Justice but I believe in the Rock Island and Northwestern case, it was the about as close as you could come.

The tracks intersected at right angles.

There was a circular interchanged track in between.

Rock Island left it on the interchange and Northwestern picked it up and the Court indicated that Northwestern had the primary responsibility to inspect that car and it was on there lines and they have the primary liability.

Now we were also told yesterday that this car was never in (Inaudible) by Erie.

Well, if it had been in their shop and the evidence says that you could notice this, the decay and the fissure from the ground, if the car had been in their shop, we wouldn't have had the accident and we wouldn't have been here now and we maintain that it was their duty and their duty not only to Benazet, but also their duty to us to inspect that car and to put it in the shop and to fix it and it was that duty to us that they have violated and it was one of their duties.

There are two duties, one to Benazet and one duty to us and they violated both of them.

Now, as we've pointed out in our brief, Erie had the last clear chance to fix this car, we didn't, we hadn't had it for three days.

There is no way before Benazet was here, we could've fixed that car.

Well, assuming we know where it was, but were not inspecting it, they had the duty.

Now if I --

Justice Thurgood Marshall: Couldn't you have fixed it when the times you had it in your shop?

Mr. Devereux Milburn: Yes sir, and I believe that's why we were held negligent by the jury.

To sum up, may I say that Erie is expecting to get out of this Scot-free.

Erie, in this case, the ship owner with liability without fault.

Erie who is negligent, Erie who had the last chance, Erie who employed Benazet and Erie wants to get out with no money and 13.07, this Court said if they could -- if they were convinced with the justice, they might have decided it the other way.

I cannot see how there can be any question, well the justice of this case if Erie gets all Scot-free.

Thank you.

Chief Justice Mr. Chief Justice Berger: Thank you Mr. Milburn and thank you Mr. Prettyman, the case is submitted.