Crumady v. The Joachim Hendrik Fisser – Oral Argument – January 13, 1959

Media for Crumady v. The Joachim Hendrik Fisser

Audio Transcription for Oral Argument – January 12, 1959 in Crumady v. The Joachim Hendrik Fisser

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Earl Warren:

Number 61 and 62, John C. Crumady versus Joachim Hendrik Fisser, et al.

Mr. Cichanowicz, you may proceed.

Victor S. Cichanowicz:

Thank you, sir.

If it please the Court, as I previously pointed out, there is uncontradicted testimony in this case that the cut off or circuit breaker was installed solely for the purpose of protecting the electric motor.

Now, in accordance with Mr. Justice Harlan’s request, I wish to point out that this testimony appears on page 42 at the top, and that there is further testimony on this point at — starting at the bottom of page 42 and continuing to the middle of page 43, and that also on page 44 at the top thereof commencing with the Court, there is — such testimony.

That is the only testimony which is in the case as to the purpose of this circuit breaker.

Now, in the words of the chief mate of the vessel, who happens to be the only person here who had personal knowledge and personal experience with this mechanism, it was nothing more than what we know as a ordinary household fuse.

That was its sole purpose.

It had nothing to do with controlling the load.

It would of course be unfair to say that —

William O. Douglas:

How can you say that when the amount of the — the size of the load in determining the amount of the power that goes into the (Voice Overlap) —

Victor S. Cichanowicz:

That the load — Your Honor, it was not installed for the purpose of controlling the load.

The only — as I said — was going to say, if the load —

William O. Douglas:

Amount of power.

Victor S. Cichanowicz:

— became excessive —

William O. Douglas:

The amount of power.

I read the parts of the record you refer to and —

Victor S. Cichanowicz:

Yes.

William O. Douglas:

— I get something quite different from them.

It seemed to me that that power, that the — that the amount of the power being used by the machines depends upon the amount and the size of the load.

Victor S. Cichanowicz:

Well, that does have some effect on it in order to — in order to lift the loads, you have to have in effect —

William O. Douglas:

Some effect, it has a very — I think some effect is understating it.

It seems to me they have — have a very important effect.

The greater the load, the more power you use to lift it.

Victor S. Cichanowicz:

Well, that’s true.

But, that — I mean, the thing —

William O. Douglas:

So you get to — you get to your cut off at a certain load level?

Victor S. Cichanowicz:

That is correct.

That is right.

But that was not the purpose of this mechanism.

Victor S. Cichanowicz:

In other words, we — for instance, we have a — take the household fuse, is there to prevent fires, but it certainly —

William O. Douglas:

You get an excess —

Victor S. Cichanowicz:

— doesn’t control —

William O. Douglas:

Excessive load on the — on the system.

Victor S. Cichanowicz:

On the system.

That’s all that this was intended to prevent and by preventing excessive load —

William O. Douglas:

One way of getting the — one way of getting the excess load on the system is to put heavy weights on the booms.

Victor S. Cichanowicz:

That is right.

That — that — that would happen incidentally but it’s not — it’s not the purpose of this mechanism because we have in order to cut — cut off the — the mechanism, we have a lever furnished for that purpose and we also had a switch that was on the mechanism itself so that —

William O. Douglas:

So the exclusive purpose with — I do — I don’t see how you can say it is not one of the purposes of it.

Victor S. Cichanowicz:

No, I — I am afraid that if I gave that impression — I do not contend that but I say that that was not why it was installed.

Now, on the other hand, assuming that such a purpose could be attributed —

Felix Frankfurter:

(Voice Overlap) — could it be — if — if saying — what you’ve just said that that is also a purpose, then what is the bearing of that fact, if it be a fact on the conclusion that the sole — that the sole causative factor of the accident was what the law — what the stevedore concerned in.

Victor S. Cichanowicz:

What effect that has?

Felix Frankfurter:

I mean, if — if it be so, if one of the purposes of the cut off or whatever it’s called, one of the consequences of it bears on the load then how can it be said — well, the District Court found it that that — that the negligence of the stevedoring company was the sole operating core of the — of the engine?

Victor S. Cichanowicz:

Well, this — this was not — this was not —

Felix Frankfurter:

I don’t quite understand that.

Victor S. Cichanowicz:

Yes.

This is not suppose to control the load.

When it controls the load, the longshoreman themselves and what this — what — it points out to them what the load is or what load they should lift is a marking which appears on the boom.

Its — its international practice, every vessel has —

Felix Frankfurter:

When you say it is a (Voice Overlap) —

Victor S. Cichanowicz:

— three ton.

Felix Frankfurter:

You must say more than that, that it isn’t supposed to, that it had no effect, that it wasn’t an ingredient in the — in the — in the result.

Victor S. Cichanowicz:

It was not an ingredient because of — because this happens, sir.

At the motor, you have a current with this set off — cut off, said as it was, you get a current quantity of six tons.

That is true.

But, by the time — because of the nature on the operation of this mechanism, by the time you get down here to where the load is, you cannot lift a six-ton load because if you are lifting a six-ton load this would cut off.

You have a six-ton load here, it would never start up because — I mean, this — this is a machine and there are number of forces acting here which require a setting here, sufficiently high so that you can overcome inertia, you can overcome these other forces and raise a three-ton load at the end of the runner.

Now, if you had this set at three tons here so that the winch as soon as the current quantity which reads the winch was three tons, you would not lift (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) you say.

Victor S. Cichanowicz:

You’d never lift a three-ton load.

You see, that’s — that’s why a setting at six tons on the current here is not an unseaworthy condition.

It’s not a condition that causes this accident because what happened here was this, when the longshoreman permitted the lumber to become caught under the coaming here and continued coaming.

What happened was this winch then started to pull.

It was exerting this power on here but this load was not then moving upward so that your current kept on building up.

It had to build up being caught here.

You actually have strange as it may sound, this was computed by the expert.

You have the force is actively doubling while up here.

Felix Frankfurter:

Are you saying — are you saying that in the circumstances of what actually took place here, the fact that the lumber got caught and they couldn’t tow up.

The — the cut off at six, whether it was fixed or even more it could be, would be irrelevant.

Is that what they’re saying?

Victor S. Cichanowicz:

It’s — yes, it was irrelevant for this reason that if the longshoreman had not permitted this timber to become caught here.

And if after it had become caught, they did not continue to operate the winch.

The force would never have been built up here.

This equipment was not furnished for the purpose that these men were using, that they were trying to jam out a piece of timber that had become caught.

That obviously is not the purpose of it.

The purpose was to raise timber whether the boom was in this position or in this position that’s originally had — it was when the vessel came in.

They had operated this winch for one hour and have discharged lumber this vessel for one solid hour without any trouble at all.

One of the reasons was they weren’t trying to pull the vessel apart.

That’s why nothing happened.

And that’s — that’s the reason —

Felix Frankfurter:

Are you saying further that if they had stop trying to lift, to get the lumber from its — from its snare, they’d stopped trying to lift it, it wouldn’t have made any difference with what the cut off was and indeed that the — whatever the cut off was, it had no effect on the power that’s gathered up on the boom and on the wire, is that right?

Victor S. Cichanowicz:

That’s correct, yes.

Felix Frankfurter:

Is that what you’re saying?

Victor S. Cichanowicz:

In other words, the power that was built up was the power that was caused by this timber becoming caught here.

And that’s what caused the build up of the power.

Felix Frankfurter:

And is — do I get from Judge — is Judge Hastie’s opinion really an endeavor to make almost a mathematical demonstration of that kind?

Victor S. Cichanowicz:

Well, I wouldn’t say precisely but he does speak of mathematics and I think the mathematics he’s referring to is this — if there was tremendous amount of calculations.

There were many exhibits.

Victor S. Cichanowicz:

And one of the calculations was showing how when a timber is caught or when something is caught here, the power stops building up here so that it throws everything else out of filter.

I mean, it’s — it’s not — no other than (Voice Overlap) —

Felix Frankfurter:

Well I suppose that is genetically demonstrable, isn’t it?

Victor S. Cichanowicz:

It is, yes.

Charles E. Whittaker:

(Inaudible)

Victor S. Cichanowicz:

Well, maybe I — I might —

Charles E. Whittaker:

Well, let me ask you in another way.

Is it because it is pulled on the line by (Inaudible) to the portside?

Victor S. Cichanowicz:

No, it’s because this load — when you’re lifting a load (Inaudible) — just for the little weight on here, you will notice that this — the boom does move but as soon as it overcomes the weight, it moves smoothly.

In other words, I’m now applying three pounds — say three tons to lift three tons here or only roughly.

So the sample point of course has to lift that three tons here.

When I — when this becomes caught that I start pulling here, this is — this was computed by an expert.

I’m not only having this boom that’s pulling this down but this because it’s not moving is also pulling it down so you are getting a build up of a force cork up here from this boom and this — and the fact that this is not moving.

Charles E. Whittaker:

Let me ask you this, is this (Inaudible)

Victor S. Cichanowicz:

Yes, it is.

Charles E. Whittaker:

(Inaudible) to this side, the port side here, to the port side, in combination are delivered to the topping-lift.

Victor S. Cichanowicz:

That was an issue to which the —

Charles E. Whittaker:

The restrain on the runner and on this hook of the tie towards the left side, (Inaudible) is also delivered to that topping-lift.

Victor S. Cichanowicz:

If it — to some extent it is, (Inaudible).

Charles E. Whittaker:

Isn’t that why you get this (Inaudible) on the topping-lift.

Victor S. Cichanowicz:

Oh, that’s right because of the fact in here.

He insist from coming over —

So —

So that way — that — that way they part also.

In other words, what we have here is now a parallelogram of force (Inaudible)

And this is one triangle that we — I remember in your computation, this was one triangle that was worked on and it develop stability, certain force established only by this triangle.

Then, there was additional force established in this triangle created by then.

(Voice Overlap) —

Victor S. Cichanowicz:

So that it’s a —

Charles E. Whittaker:

Now, it wouldn’t have — would not allow if the tool — tools was directly over (Inaudible) —

Victor S. Cichanowicz:

No, that’s true.

You would not have — you might have some but it would be — I would say minor.

Could I ask you a question?

You say that before this accident happened, they had been hauling up logs for an hour.

Was there any evidence in the record to show that the weight of the logs that they were hauling at the time of the accident was greater than the amount they have been hauling during that previous hour?

Victor S. Cichanowicz:

No.

In fact as I recall, it’s not in this record.

The testimony was that the logs’ total weight was about 1600 pounds.

The maximum?

Victor S. Cichanowicz:

That’s — that was the weight of the two logs that were being raised at the time.

It’s not in this record here but it is the testimony of witnesses, about 1600 pounds.

Before that, they have been discharging lumber and the weight of that was never obtained but even the pieces of lumber that they piled up in there is another more than that weight.

The weight I would say was — the pile, the graphs up on the woods rail and then what they were trying to lift at this moment here.

They made a — that this is a special graph that they when they’re — when they’re discharging lumber, they have but it’s a certain height and a certain width.

So that they tried to keep more with up to what the working load of the gear is, but I don’t have — we don’t have the weight of that load of the timber that they — or lumber rather.

Charles E. Whittaker:

You say 1600 pounds?

Victor S. Cichanowicz:

1600 pounds was the testimony, yes, sir.

Charles E. Whittaker:

I figured out (Inaudible) 10 by 10?

It was 10 to 10.

Victor S. Cichanowicz:

It was either 10 by 10 or 12 by 12, Your Honor.

And this was the heavy mahogany logs.

Now —

Earl Warren:

May I ask one more question about — about this as I understand you, the — this circuit breaker is not a safety factor so far with the handling of these booms are concerned through the — through these rotors and cables, bearing in mind the strength that they — they checked.

Victor S. Cichanowicz:

That’s right, sir.

It wasn’t installed for that purpose.

Earl Warren:

All right.

Now, let me ask you this, you — and you therefore — you say that the fact that it is fixed at six tons cannot be negligence on the part of the shipowner?

Victor S. Cichanowicz:

That’s correct, sir.

Earl Warren:

Suppose it was 16 instead of six, would that make any difference?

Victor S. Cichanowicz:

It was set at 16 instead of six?

Victor S. Cichanowicz:

I would say that then it constituted an unsafe condition.

You mean, if it was set at 16 tons instead of six?

Earl Warren:

Yes.

If it was set at —

Victor S. Cichanowicz:

Yes.

Earl Warren:

— 16 instead of six.

Victor S. Cichanowicz:

That’s right.

Earl Warren:

Well, then — then wouldn’t you have to say that if — that there was a safety factor involved in at some place?

Victor S. Cichanowicz:

There is a safety factor involved.

Earl Warren:

Where would the — when would that safety factor come into play?

Victor S. Cichanowicz:

Well, according to the testimony of the experts and according to this Coast Guard regulation, the setting is permitted up to 250% of the safe working load, which in this case with a safe working load of three tons would mean seven and seven and a half tons.

Earl Warren:

Yes.

Victor S. Cichanowicz:

This was a little more than six tons, so we were well within the 250%.

Earl Warren:

Yes.

Victor S. Cichanowicz:

Now that — that is a — that is — not only this is a Coast Guard regulation and also when this is installed, it’s installed by an electrical contractor who is qualified to set these things up.

In other words, they’re experts.

They set that up and it stays that way.

Nobody on a ship is permitted to or can make an adjustment on it.

In other words, this is — once it’s set, it’s set on few some qualified person like in electrical contractor who deals in that particular type of equipment resets it or rechecks or test it.

Earl Warren:

Yes.

Then as I understand you, if — if they set the cut off above 75 — seven and a half tons here, there would be a safety factor involved and to have done so would constitute negligence?

Victor S. Cichanowicz:

I think it — we would have a problem —

Earl Warren:

Yes.

Victor S. Cichanowicz:

— then.

Yes, so far as to safety.

Earl Warren:

But that’s — that’s the dividing line.

According to your theory this would be seven and a half tons?

Victor S. Cichanowicz:

That’s right —

Earl Warren:

Because of the tensile — because of the three-ton load limit on the cables.

Victor S. Cichanowicz:

That’s right.

Victor S. Cichanowicz:

It’s — it’s — well, it’s a three-ton working load —

Earl Warren:

Working load —

Victor S. Cichanowicz:

This is a —

Earl Warren:

Yes.

Victor S. Cichanowicz:

We have to remember this —

Earl Warren:

As I — I recall your —

Victor S. Cichanowicz:

— as a breaking strain —

Earl Warren:

Yes.

Victor S. Cichanowicz:

And actually they — I understand that they compute the working load by taking a piece of cable and stretching it until it breaks and then when it — whatever tonnage it breaks at, they usually take one-fifth of that and say that that is the safe working load.

Earl Warren:

Yes.

Victor S. Cichanowicz:

Now, there is still with a three-ton safe working load and this cable having a breaking strain of 15 tons, there’s a safety tolerance of 12 tons.

If we go to six, there’s still a safety tolerance as of nine tons.

So that in — in order — in permitting something like this to be built up was — we are working with a safety tolerance.

I mean, we are way within that point where it becomes dangerous.

In other words, this is — it’s still safe.

We have a safety tolerance of nine tons before this thing will break and I dare say that within this wire cable, it’s not like a piece of wood.

It starts breaking — wire cable this actually a machine, this — these are parts that move.

I mean if you can take a piece of wire cable, you’ll see that they move.

They — it’s like a machine, they move over each other.

They don’t break like the fibers do on a piece of wood.

So that by being used, by being subjected to, say in this case, occasional stresses of six tons and that happens very rarely incidentally.

It only happens when something like this occurs.

That doesn’t weaken this cable.

In fact, the trial court found that the breaking strain of this cable had not been diminished, that the topping-lift was — the safe working load of that topping-lift was at least 15 tons.

They didn’t say — this trial court didn’t say it was just 15, it said it was at least 15 tons and the wire cable had been tested shortly after the accident occurred.

Hugo L. Black:

How could this man who was hit make that computation?

I don’t quite understand that yet.

Victor S. Cichanowicz:

No, the man who was — couldn’t — he couldn’t have made it but I am — what I’m saying is that we’re not talking about the breaking point of this wire here.

And after the accident occurred, it was taken to a testing laboratory and a test was made where the testing laboratory, by means of a testing machine which they have which applies pressure to this cable showed that this cable broke, if I recall correctly, under a pressure of 19,600 pounds which indicates —

Hugo L. Black:

But what I was — what I was wondering about is — probably because I have my mechanical mind is a little lacking, I admit it readily.

Hugo L. Black:

What I’m wondering is this, you have a winch there or a circuit breaker and it’s marked three tons, if that’s what the mark.

There’s a man working down in this place, a log falls — the boom falls on him because this wire breaks.

What did he do wrong there himself?

Victor S. Cichanowicz:

Well, he himself —

Hugo L. Black:

What could he have known that he — should have called (Voice Overlap) —

Victor S. Cichanowicz:

He himself probably could not have done anything about that other than — he was one of the men who had put the wire sling around this and had attached it to this runner and have to stand — he was standing there, another man was giving signals to the winchman to go ahead so that —

Potter Stewart:

There’s no issue —

Victor S. Cichanowicz:

— he himself —

Potter Stewart:

There was no issue of contributory negligence in this case?

Victor S. Cichanowicz:

No, we — we have not raised any issue of contributory negligence but he —

Potter Stewart:

I understand that —

Victor S. Cichanowicz:

It’s up to his employer.

I — I —

Hugo L. Black:

If somebody figures that besides the people who had that winch and had this safety, this — this device there —

Victor S. Cichanowicz:

Well I —

Hugo L. Black:

Well, what — what —

Victor S. Cichanowicz:

It’s his employer’s fault.

I mean actually it’s his employers fault because they were stevedores —

Hugo L. Black:

That the — (Voice Overlap) —

Victor S. Cichanowicz:

They are experts.

They know —

Hugo L. Black:

That’s their other plea.

Do you say that’s in —

Victor S. Cichanowicz:

That’s right.

Hugo L. Black:

— pleading?

Victor S. Cichanowicz:

That’s right.

Hugo L. Black:

Is that the other pleading here, the —

Victor S. Cichanowicz:

That’s right.

Hugo L. Black:

And you say it was his fault in not doing what?

Victor S. Cichanowicz:

In that operation —

Hugo L. Black:

Could we have changed —

Victor S. Cichanowicz:

In that — in that —

Hugo L. Black:

— the setting?

Could you have changed the setting?

Victor S. Cichanowicz:

No, nobody could have changed the setting but this —

Hugo L. Black:

But if he looked at that (Voice Overlap) —

Victor S. Cichanowicz:

These longshoremen were at fault because they tried to pull out — I mean, I think it’s common sense when a timber becomes jammed, you should stop it but they continued pulling it.

That’s where the whole fault lies.

Hugo L. Black:

They continued.

How could they have stop pulling it?

Victor S. Cichanowicz:

Only had — he had a lever on this winch by means at which he was applying the power.

He was pushing to lever ahead.

All he had to do is pull it back into —

Hugo L. Black:

If giving the power and was there a notice on that, it said anything about when he was to stop by reason of the fact that this thing might break or that —

Victor S. Cichanowicz:

No, he could — he could see that the timber was caught.

He should know that something was going to break when this timber is not moving and its caught here.

Something is going to break.

You can’t — I mean it’s —

Hugo L. Black:

Your argument is —

Victor S. Cichanowicz:

It’s obvious that something is going to break when he — when this — when the power is continued to be applied to the winch.

They’re trying to pull this thing up, it’s not moving, something has to break.

Hugo L. Black:

Well I was getting down that or where I think maybe I can understand it and maybe when the other man argues with.

As I understand now, what you are saying is that the evidence shows without dispute that the asserted fact which made it necessary for this — the employer of this man to refrain from pulling or putting that power on any further.

Victor S. Cichanowicz:

That’s right, it’s —

Hugo L. Black:

And he had no right at all to depend on the fact that there was of marked limitation of the capacity in connection with the lifting?

Victor S. Cichanowicz:

No, he didn’t have any right.

In fact, he says he didn’t even know that this existed.

Hugo L. Black:

He didn’t know that there —

Victor S. Cichanowicz:

That there was a cut off on here.

Felix Frankfurter:

You said —

Victor S. Cichanowicz:

He had —

Felix Frankfurter:

— earlier that it was irrelevant.

I’ll stick to that word.

That — that the cut off, the six, was irrelevant to what happened to the — of course, to the question that —

Victor S. Cichanowicz:

That is correct because —

Felix Frankfurter:

— Mr. Justice Black is asking there.

Hugo L. Black:

That’s what I’m trying to found out.

Now, the — what you say, I gather is, how could the employer know —

Victor S. Cichanowicz:

Well, the employer knows —

Hugo L. Black:

— how much weight was being put on there?

What — what signal was it?

What kind of safety device did you have on that?

Victor S. Cichanowicz:

Well, we have —

Hugo L. Black:

So, that it will work —

Victor S. Cichanowicz:

There’s a marking.

Hugo L. Black:

— and would know that it was reaching a point where it might break.

Victor S. Cichanowicz:

On the first place, there’s a marking on the boom that you shouldn’t lift more than three tons.

That’s international practice.

It’s recognized by all (Inaudible)

Hugo L. Black:

Well, we’re they limiting —

Victor S. Cichanowicz:

The second thing is this, Your Honor, that when this became caught here, anybody should know that you can’t pull it out if it’s jammed.

Hugo L. Black:

(Inaudible)

Victor S. Cichanowicz:

I mean, that’s what I was saying, they should have stopped.

Hugo L. Black:

Is that the main issue between you and the employer of this man?

Victor S. Cichanowicz:

No, that’s — that’s one of the issues.

Yes, on the claim over that they — that their negligence was what —

Hugo L. Black:

Do you would claim that it’s due — it’s their negligence.

And your claim is that they were negligent because of what in simply (Inaudible) —

Victor S. Cichanowicz:

Because in not stopping —

Hugo L. Black:

(Inaudible)

Victor S. Cichanowicz:

The winch after this timber became jammed and it became perfectly obvious that they couldn’t get it out by continuing to apply power of the winch.

Hugo L. Black:

You say that that was the sole cause.

They had no right to depend on the fact that there was a limitation for the — as to the amount of power that should be turned loose on that winch?

Victor S. Cichanowicz:

That’s — I say, that’s the sole cause of the accident and there should be no responsibility on the vessel either under these facts, that they are the ones who caused the accident.

This cut off had nothing to do with the occurrence of the accident.

They didn’t rely on it.

They had no business to rely on it.

It was not intended for that purpose.

Now, to see —

Could I ask one question, on page 32 of the record (Inaudible) that contains the findings of the District Court, approximate cause of the accident with the negligence of the stevedoring company.

How do you reconcile that finding with the finding above, immediately above, reliability of the vessel where the District Court says on the basis of the facts has found that the winch cut off device at the time that the winch was turned over libellants, fellow employees for operation rendered the respondent vessel unseaworthy?

Under those (Inaudible) —

Victor S. Cichanowicz:

May I say, Your Honors, not reconcilable because (Voice Overlap) —

Whenever they they stack together.

Victor S. Cichanowicz:

I beg your pardon?

They don’t stack, is that what you —

Victor S. Cichanowicz:

No, they don’t because if the approximate cause of this accident was the negligence of the stevedores in the way they tried to discharge this vessel, then that’s what caused the accident.

It’s not some other condition.

In fact, later on in the — discussing the indemnity claim, the Court says that — in fact it’s on page 33, said that they find to — they find that it’s failed to exercise, it mean Nacirema.

They exercised that degree of care and that as a result thereof, it brought into play the unseaworthy condition.

In other words, it’s saying, “Well, if this thing failed to commence with a backdoor and stopped this accident.”

That is in effect what the District Court is saying and that’s why it held us responsible.

In other words, because our equipment did not prevent these people from being negligent, therefore, the vessel was unseaworthy.

That is the reasoning of the District Court which I submit is erroneous.

Hugo L. Black:

Do I understand what you concluded, meaning holding by end that the Nacirema was negligent that brought this harm?

Victor S. Cichanowicz:

That’s what the District —

Hugo L. Black:

But nevertheless, there was some kind of non-delegable duty on the part of the shipowner to see that this employee wouldn’t hurt them —

Victor S. Cichanowicz:

That’s what the —

Hugo L. Black:

— which made it (Voice Overlap) —

Victor S. Cichanowicz:

— the District Court — that’s what the District Court says but actually, Your Honor, it find me being negligent, they create a condition.

Victor S. Cichanowicz:

Then, anything that the vessel furnishes can’t be operated or used for the purpose for which it’s intended because we now have something entirely different and apart from what this thing is intended to be used for or the operation.

Instead of — if they — if they were purely discharging timber and this thing broke we would — in fact, we wouldn’t be here.

Hugo L. Black:

Was the ship’s officers there?

Victor S. Cichanowicz:

They — at the time this happened, they weren’t there.

There was an officer who was in charge.

This is a two-hatch vessel incidentally.

The officer went between the number one hatch and the number two hatch was just back off the housing that’s in the middle of the ship.

He had been here for some 15 or 20 minutes before the accident happened.

He then went back to number two hatch.

He was there for a period of time and while he was there this accident occurred, so that he was not aware of what has been going on.

Hugo L. Black:

Suppose they had turned it over to Nacirema with all of these parts that you talked about in the position that you say brought them out, the dangerous condition.

That’s the way to turned it over to Nacirema.

Would you say that then when they turned it over to him before he did anything at all, that this vessel would have been unseaworhty?

Victor S. Cichanowicz:

No, it would not have been unseaworthy.

It couldn’t have been unseaworthy.

Hugo L. Black:

He thought it dangerous and turned it over and suppose they did that and he — there was these logs down and he was to lift them up.

You’d still say that it was not have been unseaworthy and that — what seems to be — intended to be, they have normal place on one of these parts that down there, whatever they are.

Victor S. Cichanowicz:

Well, this — this still we — we get away from what the proximate and in fact in the words of the District Court, the sole cause of the accident was that was trying to lift this timber after it had become jammed behind the coaming.

Hugo L. Black:

You always come back to that one thing —

Victor S. Cichanowicz:

You have to because —

Hugo L. Black:

(Inaudible)

Victor S. Cichanowicz:

Yes, because —

Hugo L. Black:

— I was just trying to get an preference —

Victor S. Cichanowicz:

Yes.

Because you have to.

You — this couldn’t possibly have happened, all the other things are purely conditions that exist.

Felix Frankfurter:

May I ask you a question?

Victor S. Cichanowicz:

I’m sorry —

Felix Frankfurter:

May I ask you first Mr. Cichanowicz, I don’t mean to be obsessive on to point but you said a little while ago they had no business to rely the cut off instead of six, instead of three.

The question isn’t whether they had any business to rely if in fact that entered into the occurrence and if in fact have — have served a safety purpose, then it would be immaterial whether they relied on it or not.

Felix Frankfurter:

You must go to the position which I tried to express boringly several times that it was irrelevant to the occurrence that the percentage takes.

Not that they had —

Victor S. Cichanowicz:

That’s —

Felix Frankfurter:

— no business to rely on it.

Victor S. Cichanowicz:

I say —

Felix Frankfurter:

And it had — know that it was not a contributing factor or ingredient, or call it what you will, that it didn’t enter into the result which gives rise to the claim.

Victor S. Cichanowicz:

That I — that is my position, sir.

It does not answer into it because it — if — if the longshoreman did not try to lift this timber after it had become caught in there, this thing would never have come into play.

That’s what — you have to go back to that again and again in order to get the explanation of this accident —

Felix Frankfurter:

In other words, any —

Victor S. Cichanowicz:

— anything else that occurred afterward or it may have come into play does not have anything to do with the occurrence of the accident.

It would have occurred no matter what.

It would not have occurred if the — if that jamming had not occurred and these people have not tried to jam it out.

Felix Frankfurter:

It wouldn’t have made any difference if it has been fitted, what they wanted it to be fitted.

Victor S. Cichanowicz:

That’s right.

The setting is not — as I say, the setting is irrelevant.

Felix Frankfurter:

All right.

Hugo L. Black:

I don’t — I don’t quite understand that.

I thought you said, I gathered from all the arguments, it would have been difference.

Because if it had cut off before that, this thing couldn’t have happened, irrespective of every — of the Necirema’s negligence.

If it had cut off at the place where it said there, it wouldn’t have happened, would it?

Victor S. Cichanowicz:

No, it cut off at — it was — it didn’t reach the point or it cut off at the place where it was said, but this — it occurred sometime after the accident happened or it occurred at the same the accident happened.

Hugo L. Black:

If this had been limited, if this set off, if this thing had worked in a way and when it got three ton pressure on it, or a tension, or whatever you call it, it cut off, then this wouldn’t have happened, wouldn’t it?

Because they couldn’t have kept pouring the power.

Victor S. Cichanowicz:

It’s likely it did — that — that is right.

It’s likely that it couldn’t have —

Hugo L. Black:

(Voice Overlap) it couldn’t have done it, could it?

Victor S. Cichanowicz:

Not — no.

It’s likely that it wouldn’t.

Hugo L. Black:

(Inaudible) power in it, it couldn’t happen.

Victor S. Cichanowicz:

It’s likely that it wouldn’t happen because we still have this other factors developing even with a three-ton load, but that’s — now — now lifting a three-ton load, applying this power of three tons.

I — I can’t — I mean, I would concede if I could that that is so, but I can’t because there were other factors involved here which make it so.

I would say that probably if it was set at three tons, this might not have happened, but I can guarantee that it wouldn’t have happened —

Felix Frankfurter:

But didn’t you give —

Victor S. Cichanowicz:

— because —

Felix Frankfurter:

— the impression that if it has been set at three, they couldn’t have lifted any lumber?

Victor S. Cichanowicz:

They — you can’t, then you can’t lift.

You can’t lift it.

You couldn’t lift a three-ton load —

Felix Frankfurter:

All right.

Victor S. Cichanowicz:

— at the end of the runner here then.

Felix Frankfurter:

All right.

Victor S. Cichanowicz:

I am sorry to say I have not gotten to my course –.[Laughter]

Hugo L. Black:

— it’s my fault (Inaudible)

Earl Warren:

Mr. Monigan, you may proceed.

John J. Monigan, Jr.:

Mr. Chief Justice, may it please the Court.

I’m in a position that so far as the merits of the controversy in which I find myself engaged, nobody has mentioned it.

William J. Brennan, Jr.:

You went either way, don’t you, Mr. Monigan?

John J. Monigan, Jr.:

Well, that is a desirable result as far as I’m concerned.

William J. Brennan, Jr.:

Well, I mean if whether — whether his liability and the shipowner because of the defect or because solely the negligence of Nacirema.

Aren’t you out of it?

John J. Monigan, Jr.:

Well, I’m out of it, Mr. Justice Brennan.

If the decision of the Court of Appeals is correct for whatever reason then because we won’t reach my problem and that the ship is exculpated.

William J. Brennan, Jr.:

But suppose — suppose that they were not correctly respectively cut off about it?

John J. Monigan, Jr.:

If — then I’m out as well I believe.

I — I think that if the vessel was cast in liability for being unseaworthy because of this cut off device then I’m out because the vessel contributed to the mischief.

Felix Frankfurter:

Well, are you out?

Then we have to consider Ryan.

John J. Monigan, Jr.:

Well, I think not, Your Honor, because our contract in this case was not with the vessel within the terms of Ryan.

Our contract was with the charter of the vessel and the suggestion has been made that — and I don’t know whether, Your Honors, want to get into this aspect of it currently or not because the problem then presents itself as to, can a party to a stevedore contract — a person not a party to a stevedoring contract avail himself of the principles annunciated by this Court in Ryan.

John J. Monigan, Jr.:

It is our contention that to do so is lacking any support.

Particularly, we don’t have to reach the main argument even — so long as the vessel has done something at fault even if a person can be the beneficiary of a contract to which he is not a party within this framework.

Nevertheless, I’m quite confident that no court would construe any part of warranty under Ryan to exculpate a person from fault which he himself has committed.

Felix Frankfurter:

Doesn’t that the — doesn’t that — if I may say so, answer the problem sitting here?

Because after all that was the Ryan argument that why should the — there too, Ryan was at fault — I mean, the ship was at fault.

The whole question is, this business of primary, subsidiary main ship culpability —

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

— as against the person on whom the burden rest to see that the job is done.

And I don’t — you make me — you give me the impression that you think it’s all one has to do to state your proposition, that’s all there is to it.

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

It seems to me as clear as that.

John J. Monigan, Jr.:

Well, then so far as that aspect to the matter is concerned, Ryan certainly does not hold that a — that a person, not a party to the stevedoring contract can avail himself of the principle of implied undertaking.

Felix Frankfurter:

I know, but we have them very widely accepted doctrine, a third party beneficiary.

John J. Monigan, Jr.:

That is so, Your Honor.

Except that this Court has determined that as between a charterer of — that a charterer is not a third party beneficiary of a contract to repair a vessel made between the owner of the craft and a ship repair company, so to make it possible for a — time charterer who was deprived of the profits of his charter by reason of the improper conduct of the ship repair organization as a consequence of which the propeller was damaged and the vessel was out of commission, so that the time charterer could not make his profits.So, this Court stated —

Felix Frankfurter:

And when — when would that be?

John J. Monigan, Jr.:

That Mr. — Mr. Justice Holmes decided that case.

It’s referred to in our brief.

Felix Frankfurter:

The reason I asked is because a lot of law is coming through current, Buick against MacPherson and all of that kind of stuff.

John J. Monigan, Jr.:

Yes.

Well, of course if I may suggest this, Mr. Justice Frankfurter, the — our problem of MacPherson lies in negligence.

The problem in MacPherson, the theory of recovery in MacPherson was not upon a third party beneficiary but upon —

Felix Frankfurter:

I know but —

John J. Monigan, Jr.:

— primary negligence.

Felix Frankfurter:

But it does deal with who can rely on a remote contractually unrelated person’s negligence.

And either you have a finding of the District Court that the sole, almost exclusive cause of this unfortunate episode with your client.

John J. Monigan, Jr.:

Well, the finding of the District Court was that the craft was unseaworthy because of this winch cut off which was supported by testimony —

Felix Frankfurter:

Well, —

John J. Monigan, Jr.:

— and other which McAllister was —

Felix Frankfurter:

If — if that is so, then there’s a (Inaudible) of the matter?

John J. Monigan, Jr.:

Yes.

Now, so far however as the situation on indemnity which is presented in the matter, the principles of Equating Act has been passed as negligence and in this circumstance doesn’t apply.

Now, the counsel to the vessel has suggested that this matter was caused by the negligence of the longshoreman.

Now, the whole principle which is — somewhat, I’m concerned to some degree in this matter as to whether or not the accident was caused by any mischief of the longshoreman regardless — of course, if this Court is lead to the conclusion that the craft was not unseaworthy for whatever reason, then I don’t have to concern myself about why, so long as it is considered that it is not unseaworthy.

However, if it is determined to be unseaworthy then we have to determine upon what theory is this vessel unseaworthy.

Now, there was a considerable mention yesterday and this morning about these parallelograms of forces in the vertical and component effects.

Now, we, this morning from the Congressional Library got a couple of books on rigging which I don’t know — I — these are not cited in my brief, but possibly they will explain this for persons who are not a physicist, and I’m not, as to how this comes about.

One is called Handbook of Rigging by Rossnagel, R-O-S-S-N-A-G-E-L at pages 57 and 58.

It has a Library of Congress Number TJ1350R58.A

nd the other one is Mechanics for Engineers, Seely and Ensign, E-N-S-I-G-H which bears Library of Congress Number QA809.54, 1952.

Now —

Felix Frankfurter:

Mechanics of what?

John J. Monigan, Jr.:

Mechanics for Engineers.

And who are the authors?

Felix Frankfurter:

Seely.

John J. Monigan, Jr.:

Seely, S-E-E-L-Y, and Ensign, E-N-S-I-G-N.

Hugo L. Black:

What does this serve you now?

Tell us, what it is you are referring on, what it’s about in plain language.

John J. Monigan, Jr.:

Yes, sir.

If — if we can.

Now, counsel — this case is taken a — it’s a steam — a motor ship and it’s not a sailing craft, but — and I was about to say however that this case has taken very many texts during the course of its procedure through the courts.

When the unseaworthiness theory which was first asserted below was that there were certain pieces of wire introduced in evidence called L13 that comprised this gadget called the topping-lift which is the portside of the craft.

Everybody agreed that if this — that is when I say everybody, all the experts and everybody agreed that these horrible L10 and L13 exhibits, if they were part of the topping-lift clearly made the craft unseaworthy and that would let — that would resolve the cause of the accident.

However, that was not the finding of the trial court.

We’re not concerned about facts here.

The trial court —

Felix Frankfurter:

Do you think — what did you say, that everybody agreed?

John J. Monigan, Jr.:

That (Voice Overlap) —

Felix Frankfurter:

The trial court found the opposite?

John J. Monigan, Jr.:

No.

John J. Monigan, Jr.:

Everybody agreed that the wire that was introduced as to this exhibits was —

Felix Frankfurter:

(Voice Overlap) —

John J. Monigan, Jr.:

— incorrect wire.

Felix Frankfurter:

Oh.

John J. Monigan, Jr.:

And if it were on the topping-lift then at the time it would’ve — by its own defects without considering anything else about winch, cut offs, and (Voice Overlap)

Felix Frankfurter:

And what did the District Court find?

John J. Monigan, Jr.:

Found, however, that these pieces of wire did not in fact comprise the topping-lift.

Felix Frankfurter:

I see.

John J. Monigan, Jr.:

And there was a conflict in the testimony as to that.

So, that’s —

Felix Frankfurter:

In other words, the experts testified about something that wasn’t in the case.

Is that it?

John J. Monigan, Jr.:

Well, there was a conflict in the testimony as to whether these pieces of wire were on it.

We rather thought that we had the edge factually on that but the trier of fact resolved that against —

Felix Frankfurter:

Would you mind parenthetically, telling me to what point, not just plain, but to what proposition are you expounding what you’re about to explain?

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

What is your — what position are you — are you taking in what you’re going to tell us?

John J. Monigan, Jr.:

I don’t know that I understand your question Mr. Justice Frankfurter.

What I’m about to say is that —

Felix Frankfurter:

Are you — are you — are you concerned to prove there was unseaworthiness or there wasn’t?

John J. Monigan, Jr.:

No, All that I would like to —

Felix Frankfurter:

Are you disinterested to the expenditure of a complicated and —

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

— confiscated situation?

John J. Monigan, Jr.:

Well, my degree of interest depends upon the resolution of the basic question, except that I am to some extent impartial, not I hope to the extent that my impartiality shall cause the liability to be visited by my client.[Laughter]

Charles E. Whittaker:

(Inaudible)

John J. Monigan, Jr.:

I’m sorry, Mr. Justice Whittaker.

Charles E. Whittaker:

Do I understand you to say (Inaudible)

I don’t understand how you do it.

(Inaudible)

John J. Monigan, Jr.:

Well, now that leads us to where we were going before, to the — in the opinion of the Court of Appeals of course didn’t reach the legal propositions for which I believe there is sufficient authority to justify my exculpation from liability.

Now, so far however as the unseaworthiness aspect of this craft is concerned, the forces which are assessed and I believe in the question to counsel, Mr. Justice Whittaker, you suggest that that the rotation of this pole has an effect upon this matter and it does.

And the position also of these matters here was for the guy — preventer also have a factor.

Now, the reasons that this matter becomes important is that the theory of — on theory of act of negligence which the trial court suggested in the matter was predicated upon the assumption that the location of these two guy and preventer was established without factual contradiction in order to have this astronomical strain which was in the vicinity of the 19 — 17 to 19 tons.

Not alone does one have to assume a contingent pulling, but he also has to assume certain locations as to these ropes.

Now, there — as a matter of fact, our longshoreman testified that rather than be in the position which was shown here and which was testified too, by the vessel, these matters were — those — that being their position.

Our witnesses testified that in fact they were in a position opposite the block at the base of the mast, so to create this position.

Now, as a consequence of that, all of the parallelograms of forces and factors and he adds up — effect upon alters considerably.

So that in this position and there is a conflict in the testimony as to that which conflict —

William J. Brennan, Jr.:

(Voice Overlap) —

John J. Monigan, Jr.:

I’m sorry.

William J. Brennan, Jr.:

What’s the — what the trial judge find as a fact as to —

John J. Monigan, Jr.:

The trial court found as a fact —

William J. Brennan, Jr.:

As to the location of (Inaudible)

John J. Monigan, Jr.:

That it appeared without contradiction that the position of this was and originally demonstrated.

And as a matter of fact, there was a short conflict assessment.

So, if unseaworthiness in the present case is to be predicated upon this protection for a location of the preventer then our interest in the matter is solely to determine whether that factual controversy should not be resolved because counsel for the vessel today has suggested that the continued hold is the factor after the wire became or the logs became jammed if they did become jammed.

There is a finding of jamming by the trial court, but the effect of the jamming is projected by the trial court upon the combination of that assumed location of the preventer as being without contradiction.

Now, it is our submission that the movement of that in order — and all this testimony at the trial court as to which was referred to upon the several hypotheses was projected upon the theory that two things, and this the trial court found that the winch was bad.

The combination of the winch and the gear caused the craft to be unseaworthy, but that was triggered by this movement of the guy and preventer.

But that movement of the guy and preventer can have no effect upon the stresses which are imposed unless the position is such that mathematically on this parallelogram of forces that there would be those assumed locations.

Now, the — as a consequence then that this Court should be inclined to consider that the unseaworthy, that the craft was unseaworthy because of some action of the longshoreman in moving gear.

Then we submit that that movement cannot be predicated upon the trial court’s opinion because the trial court overlooked the fact that the longshoreman testified the one position for the gear and the vessel officer testified to another.

So, it was not without contradiction.

Earl Warren:

Was it your position that the ship was unseaworthy or was not unseaworthy?

John J. Monigan, Jr.:

I don’t know, Your Honor.

Earl Warren:

I beg your pardon.

John J. Monigan, Jr.:

I don’t know the answer to that question.

I think that —

Earl Warren:

I don’t care so far as your — you —

John J. Monigan, Jr.:

Well, if the —

Earl Warren:

(Voice Overlap)

John J. Monigan, Jr.:

All right.

All right, as far as my personal position is concerned, if it were resolved that the vessel was not unseaworthy, then I shouldn’t have to worry about anything else.

Earl Warren:

Yes.

John J. Monigan, Jr.:

Now — now, assuming that the vessel is unseaworthy because of something the vessel itself has done, then I submit that the — it’s — it then leads us into the possibility that we are again exculpated, although Mr. Justice Frankfurter suggest the question is not that easy, but — so —

William J. Brennan, Jr.:

So, the District Court held you liable?

John J. Monigan, Jr.:

The District Court did.

The District Court’s opinion in that respect, I regard as being incorrect and it certainly is incorrect upon the theory that it was asserted.

Now, the indemnity argument has to be based upon contract either expressed or implied.

An expressed contract does not exist here because our contract was with the charter of the vessel and not with the vessel itself.

William J. Brennan, Jr.:

Does the record show what kind of a charter this was (Voice Overlap)

John J. Monigan, Jr.:

At the time, it’s a time charter and the vessel’s crew — officers and crew were aboard.

Now, there’s no — because of the immunity under Section 5 of the Longshoreman’s Act as — was pointed out by this Court in Ryan — in Ryan and the rest of them, that unless we have voluntarily done something by way of a contract to enlarge our Section 5 or to destroy our Section 5 Longshoreman immunity, we are immune.

Now, — so, we don’t have a question of equating negligence between act to confess if negligence —

Felix Frankfurter:

But the whole question is whether this contract could be something — isn’t for something.

I think that — I think there’s a question.

I don’t mean to give the answer.

John J. Monigan, Jr.:

No, I understand.

The —

Felix Frankfurter:

May I ask this, this very question, this very question.

Has that been adjudicated in the lower court, did it come up?

I don’t mean in analogous cases.

I don’t mean argumentative decisions, but in the situation like this, are there any lower court case who have rendered this?

John J. Monigan, Jr.:

In the — in the lower court?

Directly, no.

There was one that was decided in the District Court of Maryland that it’s not — it’s dicta really, but the dicta is bearable.

It says that — and also in the Ninth Circuit, although we have the Third Circuit and the Ninth Circuit pretty well —

Felix Frankfurter:

From the Third Circuit it opened?

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

That is —

John J. Monigan, Jr.:

Well —

Felix Frankfurter:

— he explicitly said that he doesn’t have to reach this theory as well?

John J. Monigan, Jr.:

Well, I think they reached it in their earlier decisions, not in this particular case.

But the — this whole manner of — of the — well, I say this is as far as the beneficiary of the undertaking is concerned, the Third Circuit in the case that is cited on page 20 of our brief.

Well, it’s not an identical situation.

It’s quite similar and which they was held that the charterer or a vessel — of a vessel was not the beneficiary of a stevedoring contract made between a stevedoring company and avoids charterer, so to permit the time charterer to sue the stevedoring company for damages sustained by reason of the failure to discharge a cargo when there was a work stoppage.

But —

Felix Frankfurter:

On the other hand, Mr. Monigan, am I wrong in having a — I’m going to say a vaguish impression in the past readings that there are instances where — where a third party could avail of an arrangement, not made directly to himself in this maritime situation?

John J. Monigan, Jr.:

Well, they suggest in that obscurity of action as a ground —

Felix Frankfurter:

Well —

John J. Monigan, Jr.:

— as a (Voice Overlap) —

Felix Frankfurter:

But whether — all that this is — is something — the hole so deep in admiralty law that the ship is the thing, that this binds the ship.

John J. Monigan, Jr.:

Well — well, that it’s true if — if there were a situation where a lien was asserted against the ship, of course there was — this action was initially started by a ammunition and ram but a stipulation for value was filed so that there is no lien problem here.

So, as between — on general principles, for example, I submit that the general admiralty law in respect of liens is not applicable to help us to resolve the question.

Felix Frankfurter:

I think you’ve said enough to perhaps even persuade you that there’s something for discussion in this problem that it isn’t to be dismissed (Inaudible)

John J. Monigan, Jr.:

Well, the reason I — the reason I suggested originally that there was not a situation of a third party beneficiary.

There — as far as an intended beneficiary is concerned, there is no question at all that ordinary mercantile considerations of profit caused charterers to charter vessels and owners to hire them to charterers.

The time chart — now, this is not a bareboat charter and the time charterer, when he enters into a contract to cause his hired vessel to be unloaded is not concerned about benefiting the owner of that vessel by reason of that contract.

What he wants to do is get the cargo discharged and get the ship on her way.

Felix Frankfurter:

Non-concept that the owner may not have an eye to the arrangement made by the charterer?

John J. Monigan, Jr.:

That’s so and that he could put in his —

Felix Frankfurter:

The charter.

John J. Monigan, Jr.:

That he could put in his charter partner if he so desired and —

Felix Frankfurter:

I don’t — and it raises the whole question of what is and what isn’t implied in the contract.

John J. Monigan, Jr.:

Well, there — as far as an implied contract is concerned there certainly isn’t any illegal obligation employed — visited upon charterer which he is advised to discharge in anyway which would so far as his cargo discharged is concerned.

As far as the negligence is concerned, he doesn’t owe any — duty in negligence to his employees, so there’s no basis for an employment agreement.

And so far as security of action is concerned that will arise only if the charterer is liable to the owner, and in this case there is no possible way for us to resolve that question because the ship was a German vessel.

The charterer was a South American company.

The charter party is not before the Court.

John J. Monigan, Jr.:

We don’t know even by what law is to be determined of obligations under the charter party.

So, as far as security of action is concerned —

Felix Frankfurter:

Where is the vessel chartered?

John J. Monigan, Jr.:

I don’t know.

Felix Frankfurter:

It’s not in the record?

John J. Monigan, Jr.:

No, sir and —

Hugo L. Black:

(Inaudible) — excuse me.

May I ask you, suppose if we would affirm what the District Court — what the Court of Appeals said, then you would be out according to your argument, would you?

John J. Monigan, Jr.:

I would.

Yes.

Hugo L. Black:

And suppose we should not affirm and we revert?

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

And we were called on the reason this question of the right — of the right.Is it your contention that we should decide it here or send it back to the Court of Appeals?

John J. Monigan, Jr.:

Well, I would answer that by saying it depends upon whether the ground which the — the affirmance or rather the reversal might take.

If the Court is inclined to predicate unseaworthiness upon a presumed movement of these two pieces of rope that’s tied in the preventer, I think that would be incorrect to resolve that question without a remand, so we can find out where they are.

And — and in the — an appraisal of the conflict in the testimony in that respect which we never had.

Hugo L. Black:

And I suppose —

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

I’m planning to get down to what — what your point is.

Let’s suppose now that we’re not going to affirm it.

So, you’ve got to state your the position on something and you have indicated that the Court made a bad finding at least on its ground.

The Court had said that it made its finding on undisputed evidence as to where this guy and —

John J. Monigan, Jr.:

Yes.

That’s right.

Hugo L. Black:

— and —

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

— preventer were.

John J. Monigan, Jr.:

Right.

Hugo L. Black:

So now, let’s suppose that that’s not it.

When do we reach the point where you would take the position or when you did take the position in the court below on how this thing happened and why you’re not allowed before —

John J. Monigan, Jr.:

Well —

Hugo L. Black:

— outside of that one thing.

John J. Monigan, Jr.:

Well, my position in the trial court was as I indicated earlier was that we believe that this wire, L13, was the one.

Hugo L. Black:

Was defective?

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

It was defective?

John J. Monigan, Jr.:

Yes.

But that we — that we lost —

Hugo L. Black:

(Voice Overlap) —

John J. Monigan, Jr.:

That we lost on in the trial.

Hugo L. Black:

And you’re not asked as to change that?

John J. Monigan, Jr.:

No, it would be — I can’t do that.

Hugo L. Black:

What’s your other position?

John J. Monigan, Jr.:

The only other position is that if the craft is unseaworthy because of this cut off device —

Hugo L. Black:

Well, are you raising that question?

Are you arguing it?

Did you take a position on it?

John J. Monigan, Jr.:

Oh, yes, I did.

In —

Hugo L. Black:

What is — what was your position?

John J. Monigan, Jr.:

Our position is — as outlined in — pages 22 to 25 of our brief.

Hugo L. Black:

What is it?

John J. Monigan, Jr.:

That if the vessel did anything with this cut off device, if that cut off device contributed to this accident, so that it was a causative factor in producing the result that it achieved, then even if it is not necessary for a party to — even if it’s not — even if the fact that our contract was with the charterer and not with the vessel, it is not a bar to recovery on the implied —

Hugo L. Black:

Well, let’s get away from the “ifs”, I can’t understand your position here because of your “ifs”.

John J. Monigan, Jr.:

Well —

Hugo L. Black:

Well, you — did you challenge the law or do you challenge here the statement that this cut off had nothing to do with it and there was no defect —

John J. Monigan, Jr.:

Oh.

Hugo L. Black:

— in the way it was set?

John J. Monigan, Jr.:

Oh.

I think that the cut off cannot be ignored, that it did have something to do with it.

Hugo L. Black:

Of what?

John J. Monigan, Jr.:

It had something to do with it because there’s a theory which is projected by the vessel here that the reason the whole affair happened was because there was a constant hold by the longshoreman on the cargo runner because it was jammed.

That that could not have continued to operate if the cut off device had ceased at three ton —

Hugo L. Black:

All right —

John J. Monigan, Jr.:

— which was then the duty of the gear.

Hugo L. Black:

What right did you have to rely on that?

What findings were made by the Court with reference to that?

And if there are no findings made with reference to it, what do you point as to the (Inaudible), that that was — you had a right to rely on that, you’re not putting all — of — being the cut off if it reached the three-ton threshold?

John J. Monigan, Jr.:

Well, the right to reliance, there is nothing on and whether — and I submit that whether we are or whether we should or should not have relied is not material on trying to determine what caused the accident.

That leads us to the question of liability.

I said in reflect to Your Honor’s question that I thought the three-ton cut off device was a factor in producing the accident.

Hugo L. Black:

Now, what I’m asking you for, are you basing it on findings of facts on evidence, as on finding of facts where all of these are based on evidence.

Where is it?

John J. Monigan, Jr.:

Well, I’m not — the testimony of the experts that — of the witness Byrne at 86 and 87 says that the effect of this combination of the cut off device is drastic upon the safety factor.

Hugo L. Black:

What page — what part of page 86?

John J. Monigan, Jr.:

86 about halfway, just before the cross examine notation.

The — well, it starts actually at the top of the page of 86 and continues over to 87.And he further says at 60 — 67, the witness, Simons testified that —

Hugo L. Black:

The other one at page 67.

John J. Monigan, Jr.:

Sir?

Hugo L. Black:

I’m reading one on 86 where the witness says that (Inaudible) on the gear having a safe working load of three tons could be (Inaudible)

John J. Monigan, Jr.:

Yes.

Then the top of 67, the witness Simons said that it was not safe practice to have a rig designed for three-ton and a winch with a cut off at six.

Hugo L. Black:

Who was Simons?

John J. Monigan, Jr.:

Simons was witness that we called.

Hugo L. Black:

Was he an expert?

John J. Monigan, Jr.:

He was, yes.

He was a marine architect and designed topping rings — rigs and so forth.

But we — we had two — we had two experts, Simons and Byrne.

Those were the two references that I invited to Your Honor’s attention too.

Hugo L. Black:

And the Court — the Court made no finding on this particular issue?

John J. Monigan, Jr.:

Well, it did to this extent.

As we referred before to 31 and 32 or rather 32.

The Court concluded that on the basis of the facts, it has found that the setting of the winch cut off device rendered the vessel unseaworthy.

Hugo L. Black:

Now, is that consistent with what he found above unless you go to the — instead of saying that even though your people — the negligence brought about an unsafe position.

The ship was directly liable on the unseaworthiness premise.

John J. Monigan, Jr.:

Well, I think that’s — that’s true, except that there isn’t anything in the — in the testimony that says this.

But there’s no question at all from — from physical factors that if the cause of this accident was pulling the gear apart as counsel showed that the gear couldn’t have been pulled apart if the — there had been exerted upon the gear no more than three — no more than something plus three tons of strain.

Now, whether or not it’s designed for that purpose or not, it is the fact that this machinery which they had on the ship and about which we knew nothing was capable of putting whether it was putting on this additional load which even if the timber was jammed could not have been done if the — if the energy transmitted to the cargo runner by this electric winch could not have generated sufficient energy to increase it over the safe working load of the gear.

And for that reason, the integration, all of these things are integrated into one working machine and when one puts into that one working machine a device which creates energy greater than the rig can stand, that is a cause of the factor which — without which the accident would not have happened.

And as a consequence of which, the indemnity claim can — if we get that far, would be necessary to construe a contract which did not exist between the parties as indemnifying the vessel —

Hugo L. Black:

(Voice Overlap) —

John J. Monigan, Jr.:

— against its own —

Hugo L. Black:

(Inaudible)

John J. Monigan, Jr.:

Sir?

Hugo L. Black:

You’re going now —

John J. Monigan, Jr.:

Yes, against its own ruling, yes.

Hugo L. Black:

Are you — did you have any evidence that show that the — or indicates an occurrence that the people who were doing the work you were doing had the right to depend on the fact that the power that was applied to you would not be enough to break a good wires unless the timber falls?

John J. Monigan, Jr.:

I — there’s nothing in the evidence except this that we — that every piece of the equipment that’s there has on a three-ton capacity.

We have — I assume the right to rely upon the fact that the integration of machinery together would be such that it too would not be capable of generating more power than the gear safely could bear.

Felix Frankfurter:

That depends on what that means that every — that — it said three — three-tons.

John J. Monigan, Jr.:

It — it means —

Felix Frankfurter:

Then what that means and then the equipment in view of the Coast Guard saying on — to say the least not clear in my mind what it does mean.

John J. Monigan, Jr.:

Well, the Coast Guard thing, I think that — that there are two factors which the Court of Appeals mentioned two facts and I think it’s quite true.

There is the factor of two and a half times power which this — mentioned in the Coast Guard regulation which quite obviously has nothing to do with this affair, I think, I submit.

Because in the first place the vessel was built in Bremerhaven and it was not connected with the Coast Guard affair on — on that.

Felix Frankfurter:

And on concept that the Germans may not have the same process taken.

John J. Monigan, Jr.:

They might — they might very well.

But in any event, there are the suggestions that that is put in to safe the — the motor from burning out.

But it also has the effect of transmitting enough energy to pull the six-ton and it is — it is that creation of the energy sufficient to pull the six with gear that only could stay in three which is the predicate for the contributing aspect of — to the accident and — and the consonant with the finding of the trial court.

What do you — what do you do with Judge Hastie’s statement where he expressly says that there is nothing in the record that would justify a finding, the setting was cut off at six tons was — rendered the ship unseaworthy.

John J. Monigan, Jr.:

Well, there were these references which I — I gave —

I’ve —

John J. Monigan, Jr.:

— to Mr. Justice Black.

— characterized the statement correctly, haven’t I?

John J. Monigan, Jr.:

Yes.

Do you quarrel with that statement?

John J. Monigan, Jr.:

Well, not — not actively except that — I think what we’re doing is we’re getting into a question of what is — there is nothing that expressly says that but I think possibly if we say that’s a drastic combination, it’s not safe practice and so forth, we must predicate the thought that at least in the opinion of those witnesses who testified to that that they believe that it did have a contributing factor and into that it is the inference from that testimony which perhaps Judge Hastie didn’t think.

Well, did you intend that we would be justified in saying that the Court of Appeals was mistaken on this record saying that the finding of the District Court that the setting of this cut off at six was unseaworthiness, the Court of Appeals had no right to do that?

John J. Monigan, Jr.:

Well, I think that there is testimony which would justify the view that the trial court’s finding was supported by testimony, so to — to cause the reviewing revealing court under McAllister to affirm, to be obliged to affirm.

But there again, that perhaps is saying that it — that true this condition existed but it wasn’t triggered by — by that combination.

Now, in order to determine what triggers it, we have to determine exactly the circumstances of the gear and so forth which I think has not been reviewed by the — or has not been resolved and proved.

Hugo L. Black:

Is there any witnesses who disputed what your two experts said of this being standard practice, state practice?

John J. Monigan, Jr.:

Well, the vessel’s people said that — that drawing the lines of the argument that it wasn’t designed to having to deal with the cut off.

Hugo L. Black:

They said it wasn’t designed but it — was there any evidence which refuted specifically the statement of bad practice (Inaudible)?

John J. Monigan, Jr.:

I don’t recall it, Your Honor.

It — it’s quite possible that the ship’s officers had said that they did not regard it as unsafe.

Hugo L. Black:

Now, I see here there are holes in the side —

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

Where you put the guy over the preventer.

John J. Monigan, Jr.:

Yes, sir.

Hugo L. Black:

Were those holes that was placed by the vessel said that the longshoreman fastened them at the time the Court has found it to be negligent?

John J. Monigan, Jr.:

That was the position that — yes.

Hugo L. Black:

Where they placed it —

John J. Monigan, Jr.:

But not —

Hugo L. Black:

Where they placed it there which were invitational insofar as fastening the guy rope is concerned or could the — could they just put them anywhere?

John J. Monigan, Jr.:

No, they were —

Hugo L. Black:

There were holes here.

John J. Monigan, Jr.:

They were invitational but it is conceited that this exhibit does not correctly represent —

Hugo L. Black:

Oh, I understand it.

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

I’m trying to find out if there were holes or something which they —

John J. Monigan, Jr.:

Yes, well — well, there’s what they called a clincher stiffeners on the rail which — no — which no more invites a particular spotting in this area than anyone else except that it does it for the matter.

Hugo L. Black:

Each — each one, each one as to the (Inaudible).

John J. Monigan, Jr.:

Yes, where — where —

Hugo L. Black:

They’re just the same?

John J. Monigan, Jr.:

Yes, that’s right.

Its not — it’s not particularly more one way or another.

Hugo L. Black:

Any kind of notice or any evidence or any kind of notice or anything about where they would be put in connection with the three-ton, whether it’s six-ton or whatever?

John J. Monigan, Jr.:

No.

Actually, it wouldn’t make — the position wouldn’t make any difference, so far as the three or six ton is concerned.

If it were put in the optimum position, which is — where our longshoreman said it was that would — would of course result in a transmittal of less force if it were three than six.

But, it will still be for a minimum.

Now, actually this other position is the worst position you could assume and which no sensible longshoreman including the witnesses who testified on our behalf, said that that was a completely unrealistic picture which was assumed by the trial court to have existed without contradiction.

Charles E. Whittaker:

Would that assume — that would assume that position?

John J. Monigan, Jr.:

No, assumed to be established without contradiction.

Charles E. Whittaker:

(Inaudible)

John J. Monigan, Jr.:

Well, he made — he made the finding that it appeared without contradiction.

Charles E. Whittaker:

(Inaudible)

John J. Monigan, Jr.:

Well, I think it would be — I think it would be manifestly erroneous which would cause an appellate court correctly to — to direct that — that controversy which is apparent in the record and which is apparent from the printed portions of the record which are referred to in our brief on this — this point which is concerned with the testimony of Mr. Costa which begins at page 52 and goes through to 57.

Hugo L. Black:

You take the position that that would show that he didn’t have his mind on it, he didn’t understand?

John J. Monigan, Jr.:

That’s right.

I think — I think that’s —

Hugo L. Black:

That’s in both ways.

John J. Monigan, Jr.:

Yes.

Hugo L. Black:

You would challenge the finding on that basis?

John J. Monigan, Jr.:

On that — that aspect (Inaudible)

Felix Frankfurter:

May I ask wholly irrelevant question?

Is there any — is there any — am I — is there any doubt that Nacirema is liable under the Longshoreman’s Act?

John J. Monigan, Jr.:

No question (Inaudible).

Earl Warren:

Mr. Freedman.

Abraham E. Freedman:

May it please Court.

In view of the limited amount of time which I have, may I have lead to file a reply brief to answer quite a number of the comments which have been made, which I believe are contradicted in the record.

I would like to specifically point out those portions in the record which are inconsistent with what my good friend over here has stated.

I — I don’t have time to do it now.

I would — unless, Your Honors, ask me specific questions.

However, I would like to summarize very briefly —

Earl Warren:

You may do it and counsel may answer it, provided you —

Abraham E. Freedman:

Of course, sir.

Earl Warren:

— do it promptly.

Abraham E. Freedman:

I — I think it would be an order that he should have an opportunity.

Earl Warren:

Yes.

Abraham E. Freedman:

It is our position, sir, that this Court has established the beyond to venture that the shipowner has a non-delegable duty to provide a safe place to work, on board the ship for the longshoreman as well as the seaman.

That he may not delegate that duty although he may delegate the job and if the job is performed improperly then the shipowner is liable.

We had not go insofar in this case as to state that for negligence alone the shipowner is responsible, although I think that we would be completely justified in taking that position on the basis of Mr. Justice Harlan’s opinion in the case of the Dixon versus United States where, Your Honor, passed aside the question of whether unseaworthiness is involved and said that the shipowner is liable on the basis of his non-delegable duty to the people on the vessel for the negligence of an independent contractor.

However, what we say here is based more on the Petterson case which Your Honors handed down following the decisions in Sieracki and in Hawn and Mahnich versus Southern Steamship Company.

Felix Frankfurter:

Is Mahnich the map case?

Abraham E. Freedman:

Mahnich?

No, sir.

Mahnich is the case where —

Felix Frankfurter:

What’s the map case?

Abraham E. Freedman:

The map case?

Felix Frankfurter:

Yes, the obsolete map that was in the draw.

And they have a good map but they used an old map.

Isn’t that Mahnich?

Abraham E. Freedman:

No, that was not the Mahnich case, Your Honors.

That was — I think that case was associated with Ron where there were a number of weather request missing too in a Court, this Court or rather a lower court held the vessel unseaworthy because she was not properly equipped with the proper charts and so on.

Felix Frankfurter:

And that’s what I mean.

The charts, that’s what I (Voice Overlap) —

Abraham E. Freedman:

Charts, yes, sir.

Felix Frankfurter:

I should have said chart.

Abraham E. Freedman:

Weather — weather maps and so on.

Felix Frankfurter:

They had — they had the right ones there but they also had some old ones and the old ones were used and that was deemed unseaworthy there.

Abraham E. Freedman:

Your Honor, that’s exactly what the Court held there.

Now here, following Your Honor’s decision in the Petterson case in which, Your Honors, will recall that the shipowner was held liable for a defective block which had been brought aboard, supplied and brought aboard by the longshoreman.

Following that in the case of Grillea, Judge Hand speaking for the Second Circuit had this set of facts before him.

There were — the longshoremen were engaged on that vessel at that time and replacing the hatch boards.

And after some of the hatch boards had been replaced, some of the men who were engaged in that very practice stepped on one of the hatch boards which was set on top of the pot-eye and therefore unsteady, and down he went into the hole.

It was conceded that it was a negligent act in putting it there by this very longshoreman.

However, the Court there held that pursuant to Your Honors decision in the Petterson case, it was an unsafe condition for which the shipowner was responsible regardless of whether the condition was created by the longshoreman or by the ship — the ship itself.

Now, similarly here, sir, we say that the condition which was created here whether it was by the ship or whether it was by the longshoreman was a terribly dangerous and unseaworhty one.

Aside of the cut off device completely, let me cite to Your Honors, Judge Hastie’s decision or part of his decision which he sets forth on page 113 of the record.

My friend here has said that the exclusive and sole factor which was the approximate course of the accident was the negligence of the winch operator in continuing to apply pressure.

As a matter of fact neither courts so held, neither courts so find.

Here is what Judge Hastie said which was the — as to what was the deciding factor, “The decisive fact — this is the second paragraph about down in the middle of the page in record, page 113, “The decisive fact as the Court found it was that the employees of the Nacirema had so changed the position of the head of the boom as to seriously distort the normal composition of forces which is presented by a straight lifting operation.

It was for this reason that the topping-lift was subjected to an enormous, abnormal, and unanticipated strain.”

It was on a basis of that unsafe condition therefore and we urge Your Honors that on a basis of that alone there should be liability in this case.

And my friend’s contention that the courts below —

Charles E. Whittaker:

(Inaudible)

Abraham E. Freedman:

Liability on the ship.

Charles E. Whittaker:

(Inaudible) what Nacirema did in moving the boom?

Abraham E. Freedman:

Exactly, sir.

Any unsafe condition.

Your Honor — Your Honors said it Petterson versus Alaska Steamship Company that the ship has the non-delegable duty.

It may delegate the work but it cannot delegate that duty.

If it engages Nacirema or any other independent contractor to perform the work, it is responsible for the unsafe conditions which may be created.

Felix Frankfurter:

But Mr. Freedman, the most —

Charles E. Whittaker:

(Inaudible)

Felix Frankfurter:

I beg your pardon?

But the most perfect, the most seaworthy boat can be twisted out of shape and out of gear by some conduct of — of negligent or misconducting people.

Abraham E. Freedman:

Sir, when a ship —

Felix Frankfurter:

Isn’t that true?

Abraham E. Freedman:

Well, I — if Your Honor — I — I would like to understand Your Honor’s question.

If Your Honor is saying that while a ship is in the control of the vessel owner or while the ship was being manned by its crew and it engages an independent contractor to perform certain work, let us say, it engages instead of just normal stevedoring work.

Let’s say it engages a caterer to conduct the services in the stewards department.

And that caterer obtains a very bad food as a result of which the crew is poisoned.

This ship, let us say, was entirely careful in selecting a good caterer, a reputable caterer and even a (Voice Overlap)

Felix Frankfurter:

I’m not talking about that case.

I’m talking about the physical ship, the gear, the booms, all the components that a make ship what we call seaworthy.

And every expert would say and you would say it was seaworthy.

But it could be twisted out of shape.

It could be contorted, couldn’t it, by some misconduct of those who handle it.

And therefore, your proposition is that whenever any non-crew members do these things that negligence per se renders the ship unseaworthy.

Abraham E. Freedman:

Yes, Your Honor —

Felix Frankfurter:

That’s almost your proposition.

Abraham E. Freedman:

As a matter of a fact, that was the — that was almost the bare statement which this Court made in Mahnich.

In the old days under the general maritime law before the Jones Act was handed down, there were numerous cases where the courts, this Court included in the — in the Wily, and the others as they are out — set out in the Mahnich case where the courts predicated liability on really negligence, although it was the negligence of a fellow servant which created an unsafe condition.

So that although there could not be a recovery on the basis of pure negligence of a fellow servant.

The Supreme Court in many instances as is outlined in the Mahnich case, allowed recovery where that negligence created an unsafe condition.

The Court has held that there would — there need not be any scienter.

There was no notice.

The Court has held that it is an absolute duty.

Felix Frankfurter:

That’s your proposition.

Abraham E. Freedman:

I need not go so far here, sir.

Felix Frankfurter:

That any kind of negligence that — that whenever through the negligence of stevedores, an otherwise seaworthy ship is twisted out of shape or contorted, damage is done to it, that makes the ship — it then becomes unseaworthy.

Abraham E. Freedman:

I — I would say, Your Honor, that Your Honor’s statement is —

Felix Frankfurter:

(Inaudible)

Abraham E. Freedman:

— much, much in general of course —

Felix Frankfurter:

— (Inaudible) there’s a lot of them, talk in Mahnich but it doesn’t stand for that proposition.

Abraham E. Freedman:

But your — when —

Felix Frankfurter:

And Chief Justice Stone had a great deal of difficulty in explaining away, not overruling, in explaining away — I forgot what’s the name of the case.

Abraham E. Freedman:

The Pinar del Rio.

Felix Frankfurter:

Yes.

Abraham E. Freedman:

No, he did overrule it.

Felix Frankfurter:

What?

Abraham E. Freedman:

Did overrule it, sir.

He overruled it —

Felix Frankfurter:

He overruled it?

Abraham E. Freedman:

He overruled specifically the Pinar del Rio.

Felix Frankfurter:

Well —

Abraham E. Freedman:

The Pinar del Rio — and here were the facts, Your Honor.

Felix Frankfurter:

(Voice Overlap) —

Abraham E. Freedman:

In that case —

Felix Frankfurter:

You mean in terms, it was overruled?

Abraham E. Freedman:

In that case, Your Honor —

Felix Frankfurter:

Was it overruled in terms?

Abraham E. Freedman:

Yes, Your Honor.

Felix Frankfurter:

All right.

Abraham E. Freedman:

My recollection is that he specifically overruled it.

Here were the facts.

In the —

Felix Frankfurter:

I know what the case is very well —

Abraham E. Freedman:

— under the — well under the —

Felix Frankfurter:

— because (Voice Overlap) —

Abraham E. Freedman:

Well, under the old law — under the old law, there could be no recovery for the negligence of a fellow servant.

In the Mahnich case, a mate and a bosun selected a defective piece of rope from a group of rope which was an abundant supply of rope which was entirely satisfactory and they rigged the scaffold with it.

And the man went up on the foredeck and started to paint and down he came because of the defective rope.

It was their contended on the basis of the Pinar del Rio case that the ship could not be responsible because actually it was the negligence of the mate and of the bosun which created this condition.

And therefore, there could be no liability.

The Supreme Court said no, that rope was defective.

It didn’t make any difference.

Abraham E. Freedman:

If it was an abundant supply of good rope, if there was an abundant supply of good rope, there had to be liability because it was an unsafe scaffold which had been rigged.

And the Court there specifically overruled the Pinar del Rio which had held expressly to the contrary.

Hugo L. Black:

I don’t think they used the words overruled.

Abraham E. Freedman:

I’m sure we didn’t overrule it.

Hugo L. Black:

What he said was this although I’m — but my stand point is much the same thing.

Felix Frankfurter:

Yes.

Hugo L. Black:

That the statements from the Pinar del Rio relied upon by the two courts below could be taken to support their decision.

Only on the assumption, either that the presence of sound rope under which scaffold afforded an excuse for the painter to provide a safe staging or that anteceded negligence of the mate in directing the use of defective rope relieve their owners from liability to furnishing their barge, thereby rendered unseaworthy.

But as we have seen neither assumption is tenable in the light of our decisions before and since the Pinar del Rio.

So far as this statements supports these assumptions, it is disapproved.

We cannot follow it.

Also —

Felix Frankfurter:

(Inaudible)

Hugo L. Black:

— followed the (Inaudible) and the Carlisle Packing Company —

Abraham E. Freedman:

Well, I take that to mean that they — when they disapproved a decision in Pinar del Rio.

Felix Frankfurter:

When you disapprove some language in a case —

Abraham E. Freedman:

Well —

Felix Frankfurter:

— you don’t overrule the decision in a case.

Abraham E. Freedman:

Well, sir, I — I don’t know —

Felix Frankfurter:

I know I have constantly learned new law but I thought that that’s still is good, that by over — by saying we disapprove a specific statement in an opinion, we don’t overrule the decision.s

Abraham E. Freedman:

Well, it was a holding in the Pinar del Rio which was disapproved.

However, in any event —

Felix Frankfurter:

What’s with the holding?

You keep on saying the holding.

It was language in talk.

Earl Warren:

Mr. Freedman, I’m afraid we’ll have to conclude this case.

Abraham E. Freedman:

I — I do want to express my appreciation for the additional time and the consideration which is given.

And I will file my brief right — my memory in great copy, sir.

Earl Warren:

Thank you.

Abraham E. Freedman:

Thank you, sir.