Gutierrez v. Waterman Steamship Corporation

PETITIONER:Gutierrez
RESPONDENT:Waterman Steamship Corporation
LOCATION:Bay County Circuit Court

DOCKET NO.: 229
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 373 US 206 (1963)
ARGUED: Mar 21, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – March 21, 1963 in Gutierrez v. Waterman Steamship Corporation

Earl Warren:

Number 229, Frederico Marin Gutierrez, Petitioner, versus Waterman Steamship Corporation.

Mr. Nachman.

Harvey B. Nachman:

Mr. Chief Justice, may it please the Court.

This is a case of a longshoreman who is injured on October 21, 1956 when he fell on the pier of the dock area.

He was engaged in the discharging of cargo from a particular vessel and beans had become scattered about the pier surface in the discharge operation from bags that had been broken aboard the vessel.

He filed his libel in the Southern District of New York in January 9, 1959 and pleaded excusable delay in the absence of prejudice to the respondent.

The case was then transferred to Puerto Rico, to the District Court of Puerto Rico, and the respondent answered the libel stating that, in its affirmative defenses, that the action was barred by laches.

The respondent then submitted interrogatories in which they asked the names of all the eyewitnesses which were furnished to the respondent.

Deposition of the libellant was taken and in March 1960, the case came on for trial.

At the end of the trial, the trial judge rendered a — an oral opinion from the bench in which he stated that the only issue he wanted briefed was the question of medical damages, that he was satisfied, that there was negligence on the part of the shipowner, that the vessel was unseaworthy, and that both of these were the proximate causes of the injury, and that there was no laches because the respondent was not prejudiced.

Thereafter, the trial court rendered a memorandum opinion and formal findings of fact.

If I may allude to these findings of fact, they are on pages 18 and 19 of the record.

The trial court found that many bags aboard the vessels were defective and broken, that despite the work of coopers, beans had been observed spilling from drafts as they were being unloaded from the vessel, and that the beans scattered about the pier created a dangerous condition.

It went on to find that the cargo was defective and unseaworthy and that the shipowner was negligent in permitting the discharge when it knew or should have known that the in — that injury, not the injured, but injury was likely to occur to people who were performing services on behalf of the vessel.

It went on to find that these were the proximate causes, and it also found that as to laches, all of the eyewitnesses were available.

The potential eyewitnesses were known to the respondent.

That all the documentary evidence relating to the voyage, the occurrence, the injury, and the medical treatment were available to the respondent, and in fact all of this documentary evidence was in fact produced at the trial by the respondent.

The Court concluded that it has jurisdiction and awarded damages in the sum of $18,250.

The respondent appealed and the Court of Appeals for the First Circuit reversed and found that there was no unseaworthiness, that there was no negligence, and that the libellant was barred by laches.

We have petitioned for certiorari stating that the decision of the Court of Appeals was contrary to the decision of the Courts of Appeals of all the other Circuits that have passed upon the questions herein.

And a certiorari was granted in October and the first question I think we face is the power of the Court of Appeals for the First Circuit to reverse or to make findings of fact of its own.

The trial judge had before him the petitioner and all the eyewitnesses, and their demeanor and their credibility were for him to judge.

He was a — in a peculiarly excellent position as a trial judge to gauge their credibility and demeanor, and that they all testified in Spanish, and the trial judge was fluent in Spanish.

There was some conflicting evidence as between the eyewitnesses and some of the documentary evidence and there was conflicting evidence between the various documents that were introduced by the respondent.

The weight of this evidence we submit was for the trial court as it was the question of laches, because this Court has held that laches is addressed to the sound discretion of the trial judge.

I must point out that there was no conflict in the evidence as to the occurrence of the accident or how it occurred.

And there was no conflict in the evidence as to whether or not the bags were torn aboard the vessel.

The documentary evidence of the respondent proved that the vessels were torn aboard the vessel.

The Court of Appeals extracted certain items from the documentary evidence and gave them more weight than the trial judge did.

It made inference of its own, it even misread one document, and on each disputed issue, it drew contrary conclusions and contrary inferences than did the trial judge.

Harvey B. Nachman:

Now, we submit under the McAllister rule that the Court of Appeals didn’t have this power.

If I may go to the first issue which is that of laches, the Court of Appeals decision is interesting in that it says that the libellant or petitioner had no right to recover on the merits.

If it the petitioner had no right to recover on the merits, why discuss the question of laches at all?

Because obviously, the respondent had a fair trial, if the petitioner was not entitled to recover on the merits, but they discussed the question of laches and if I may allude to the facts that are in the record; the suit was filed in New York.

In New York, the analogous statutes of limitations are three years for negligence and six years for unseaworthiness.

Upon transfer to Puerto Rico, this action was filed two years, two months, and 19 days after the occurrence.

In Puerto Rico, the analogous statute is set forth in petitioner’s brief and it is as one year from the date of the final decision of the State Insurance Fund.

The action was filed 13 months after that date, but that analogous statute is only a yardstick.

And the same Court of Appeals, three months later, held that to be barred by laches, an action must be filed, both after inexcusable delay and prejudice to the respondent.

In this case, the libellant or petitioner furnished the respondent with the names of all the witnesses.

The respondent chose not to interview them.

The petitioner — I’m sorry, the records introduced into evidence were by the respondent.

They showed that the eyewitnesses whose names were submitted in answer to interrogatories were the only potential eyewitnesses by their own payroll records.

The respondent’s documentary evidence included an accident report, reports showing broken and torn cargo aboard the vessel, spillage inside the pier — inside the vessel and on the pier, the fact that coopers were being used aboard the vessel to sew bag and also ashore to sew bag that came off torn, and the entire medical history of the petitioner from 1951 to 1960.

They had a physical examination of the petitioner and their doctor — the record shows the doctor said that he had everything that the petitioner’s doctors said that he had.

The Court of Appeals concluded that despite the findings of the trial court that there was no prejudice, that the witnesses’ memory, were faulty in that, they also testified to the spillage of rice and rice was not discharged until after the occurrence.

But the trial court never found that the libellant or the petitioner was injured by falling on rice.

And I think that the Court of Appeals has regarded prejudice as in terms of “Can I win” rather than “Can I defend” Certainly the respondent here was just as much able with all if its documentary proof and all of its — and the availability to interview the witnesses to defend two years after the occurrence in Puerto Rico as it would have been six years after the occurrence in New York.

This leads us to the question of, “What should the analogous statute of limitations be for laches?”

Arthur J. Goldberg:

Is it originally brought [Inaudible]?

Harvey B. Nachman:

That’s right, Mr. Justice —

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

It was transferred under rule 1404 (a).

In McAlli —

Potter Stewart:

Is it clear as a matter settled law that transfer of venue of that nature, that the — that the statute of limitations of the transferring court is not the applicable one?

Harvey B. Nachman:

Mr. Justice Stewart, I think that the law is that the transferring courts statute should be the analogous statute.

But the trial judge in Puerto Rico has assumed, that his statute, that is the statute in Puerto Rico would be the analogous statute and we raised no issue as to that in this case at any time (Voice Overlap) —

Potter Stewart:

I remember about ten — more than ten years ago, while I was in the practice, I — I had some litigation involving that question.

At that time, it wasn’t — it wasn’t clear.

Harvey B. Nachman:

We have it in — in the admiralty procedure as I know it, for example, if I have a case referred to me because the vessel is seized in Puerto Rico, and the accident occurred in Pennsylvania, actually what happens is that proctor for the libellant always tries to get the best he can —

Potter Stewart:

Surely.

Harvey B. Nachman:

— under such a situation.

But usually, a stipulation is entered into if transfer is clear under 1404 (a) and jurisdiction could have been obtained under the Hoffman [Inaudible], that the statute of limitations which will be the analogous statute will be the transferring jurisdiction.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

The accident did take place in Ponce, Puerto Rico.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

Yes there is, Mr. Justice Goldberg, but the delay — the delay was occasioned because the petitioner had hired an attorney from New Jersey.

The — this attorney left —

William J. Brennan, Jr.:

In other words, the [Inaudible]

Harvey B. Nachman:

I’m sorry, Mr. Justice Brennan and this — this attorney returned to New Jersey and never communicated with the petitioner, and the petitioner contacted us in July of 1958.

We told him we could not represent him until we contacted the attorney in New Jersey who had the retainer.

And that took sometime and in January of 1959, we’ve contacted an attorney in New York to file the libel for us there because Waterman Steamship Corporation at that time would not voluntarily appear in Puerto Rico without seizure.

In McAllister against Magnolia, Mr. Justice Brennan, in his concurring opinion stated that — he felt that to avoid this form of shopping that has just become evident, a single analogous statute should be used as a yardstick”.

That is the same statute that is used for seamen in the Jones Act, the three-year statute.

And the Fifth Circuit has now adopted Mr. Justice Brennan’s reasoning for longshoreman as well and holds that because in the – in the Fifth Circuit alone, and the sixth jurisdiction is in the Fifth Circuit, the analogous statutes of limitations has ranged from one year in Mississippi, four years in Florida, and in some cases, six years in Louisiana.

And the Fifth Circuit has adopted the reasoning of Mr. Justice Brennan and said that we will use the three-year statute of the Jones Act because unseaworthiness is the same, whether it occurs to a seaman or to a longshoreman.

The Fourth Circuit has not passed on it, but Judge Hoffman in the District Court of Virginia has rejected Mr. Justice Brennan’s reasoning.

We feel that there should be uniformity in these cases and that it should not depend upon the fortuitous circumstance of where the particular longshoreman was injured.

For example in Puerto Rico, it depends upon the length of treatment that the injured worker has as to what the analogous statute of limitations is.

In New York, it depends which side of the river he’s working that particular day, because in New Jersey it’s a two-year or a three-year statute, and in New York, it’s three and six for negligence and unseaworthiness.

Potter Stewart:

The state has borders to this.

Harvey B. Nachman:

Every state has borders but not every port is in two states.

Potter Stewart:

Right.

Harvey B. Nachman:

I was only just saying New York because it’s the only port I can think of that’s into two — in two states.

But whether the Jones Act is adopted as the analogous statute by this Court, or whether this Court adopts no statute or a flexible statute or retains the present state statute as the yardstick, we submit that there is no prejudice in this case to the respondent.

That the trial court exercise its discretion based upon evidence in the record and it was error on the part of the Court of Appeals to a revoke this decision.

The Court of Appeals also reversed the trial court because it found that the judge erred in finding that the respondent was guilty of negligence.

The grounds for reversal are in its opinion, it says, “That first of all the trial court erred in referring to a bag breaking in midair, and the record should have been read that the bag fell from midair and broke unto the pier.

Harvey B. Nachman:

This was a bag that fell from hold number one, that there was no evidence that the respondent participated in the conduct which caused the spillage on the dock and that the respondent had no control over the locus of where the injury occurred.

Now —

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

It was on the tackles on the pallets that — they were being unloaded in pallets, sir.

In this particular hatch, they were being unloaded — in these first three hatches, they were being unloaded in pallets, the evidence — the respondent’s record show that from hatches number four and five, they were being unloaded in canvas slings attached to the tackle.

Even if we concede that the trial court read this ambiguous document incorrectly, let us say that the Court of Appeals reading of this document is correct.

I don’t know how we can disregard the trial courts’ findings that there was broken cargo aboard the ship, that there was constant observance of the spillage from the ship while it was attached to the ships’ tackle to the pier, that it was foreseeable that if this cargo were discharged, that somebody in the service of the ship would become injured, and that these beans actually spilled because of this negligence, and that the proximate cause of the libellant’s injury was the beans on the pier.

These findings also negate the conclusion of the Court of Appeals that the respondent did not participate in any way in this conduct.

The respondent continued to discharge these bags when it knew or should have known of their condition, that’s four coopers in — on this ship, sewing these bags up, and the foreseeable consequences thereof.

William J. Brennan, Jr.:

As a matter of faulty storage aboard ship or rats or what?

Harvey B. Nachman:

Well, from the evidence, it seems that the bags themselves were poor because many of them disintegrated, some were — from the record, it seems that there was pilferage because of holes, not in the bags of beans, but there were pilferages from cartons in respondent’s Exhibit 10, which is in the record, that there was a lot of pilferages in cartons because the cargo was all broken especially in pier – in holds number four.

And then there was spillage at the aft end of the ship because the cargo boom dropped the whole draft loads of cargo when it couldn’t clear trucks that were stationed on the deck of the vessel.

But that has nothing to do with this occurrence —

Potter Stewart:

Yes.

Harvey B. Nachman:

— which happened to be the forward side of the vessel.

Potter Stewart:

This was a — what was being unloaded here was — was entirely a cargo of beans.

Harvey B. Nachman:

At the time — well, at the time prior to this occurrence —

Potter Stewart:

On pallets — it was a —

Harvey B. Nachman:

On pallets.

The argument of the Court of Appeals that negligence cannot be found against the respondent because the respondent had no control over the place where the accident occurred is to me a novel statement of tort law.

If I cause debris of any kind, to become — or to be placed on my neighbor’s property, can I be absolved from consequent injury to anyone who walks on that property because I don’t control that property, and this is what the Court of Appeals had said here.

That despite the findings of the trial judge, since the ship did not control the pier, it cannot be held liable for any negligent conduct in discharging this because it did not control the pier.

We submit that even if this Court were to decide that the seaworthiness doctrine does not extend to the pier, which I will come to immediately, that this particular case should be reversed and the trial judge, this is a judgment reinstated, decree reinstated because of the findings of negligence and these findings are sufficient in and of themselves to warrant recovery.

We come to the crucial issue –legal issue I think which is, does the doctrine of seaworthiness extend to the pier area.

This Court in the Sieracki case left that question open, specifically left it open in a footnote.

And just six years later, Mr. — excuse me, Judge Learned Hand decided that the question should be answered in the affirmative in the Strika against Netherlands Ministry of Traffic case in the Second Circuit.

Since that, well — excuse me, certiorari was denied in that case despite the fact that Judge Swan dissented not on grounds that he differed with Judge Hand, but that he felt that this Court should decide the issue.

But this Court denied certiorari and I’m not implying that by that, you’ll have affirmed the Strika case, but the bench in the bar, all over the United States has, I will submit, concluded that you have affirmed the Strika case because in every case in the last 11 years in which this issue has arisen, there has been recovery when there has been the finding of negligence or unseaworthiness until the case below.

Harvey B. Nachman:

And this includes the fourth —

Byron R. White:

[Inaudible]

Harvey B. Nachman:

In this particular case no, Mr. Justice White, but I think that this issue is apparent and comes up frequently.

There’s a case now pending in the Third Circuit that is awaiting decision of the court — of this Court in this case, and there are cases arising all the time.

And because of the extreme conflict between the view of the First Circuit and the other five circuits that have viewed this case, I think that you should — that this Court should decide it because otherwise there would be hopeless confusion in the admiralty law.

Potter Stewart:

You think we should decide what specifically?

The unseaworthiness liability to some — to a shoreside worker who’s working on the shore and who’s injured ashore, is that it?

Harvey B. Nachman:

Not to any shoreside worker, Mr. Justice Stewart, to a shoreside worker who has the same status as a seaman or who is doing the work that traditionally performed by a seaman.

Potter Stewart:

Who — since when a seaman traditionally performed this work, it’s always been a worker, a shoreside employee, isn’t it?

Harvey B. Nachman:

In my brief, Mr. Justice Stewart, I have pointed out that since time immemorial, the seamen were charged with the duty of both loading and discharging the vessel.

Arthur J. Goldberg:

Who have the biggest [Inaudible] ever had, as to the seaman who were [Inaudible] load and unload the cargo?

Harvey B. Nachman:

Mr. Justice Goldberg, we have a peculiar situation in Puerto Rico and that there are some companies in which the seamen do load and unload the cargo.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

They don’t have union — all the steamship companies that operate in Puerto Rico are not unionized.

But–

Potter Stewart:

You’re reporting to somewhere in your brief, were you?

Harvey B. Nachman:

It was only in recent times, Mr. Justice Stewart, that at Footnote 6 on page 10, all of these cases cited in Footnote 6 were cases involving seamen loading and unloading cargo.

Seaman — there are admiralty cases where seaman had been rightfully — where wages had been rightfully withheld from seamen for their failure to load cargo or for their leaving the vessel before the cargo was unloaded.

There has never been any question that this man — this man is better than the man working in the shed.

This is the person who is a tacker man.

He was disengaging the draft from the hook while it was still attached to the vessel.

This vessel could no more unload without him than it could without the persons who are loading the drafts in the hold.

Potter Stewart:

Who is the — to whom did the unloading tackle, was it a part of ship’s gear?

Harvey B. Nachman:

Well the —

Potter Stewart:

Or was it —

Harvey B. Nachman:

Well, the booms, the winches, the winch hooks all belong to the ship — ship’s gear.

The pallets are usually the property of the longshore — of the stevedoring contractor.

In this case, it’s very difficult to tell it.

It was never an issue in evidence because the stevedoring contractor is a wholly owned subsidiary of the steamship company, so that there was no way of knowing it and it was never raised as an issue on this either.

Unseaworthiness is defined by this Court in Sieracki as a form of absolute duty owed — owing to all within the range of the humanitarian policy.

Harvey B. Nachman:

Now, the petitioner is a member of the class performing the work traditionally done by seamen, but the Court of Appeals would cut him out from the protection on the ground that he was not even in a technical sense about to go on a voyage.

I submit that if you adopt this position, you have overruled Sieracki because as Mr. Justice Goldberg had indicated, there is no longshoreman who is in any sense today about to go on a voyage.

There’s no difference in service performed by this man than the man aboard the vessel and all the other courts have dismissed this argument as being a distinction without a difference.

The Court of Appeals has also said that the condition of the cargo should not render the vessel unseaworthy and the brief has cited all the cases where condition of the cargo per se can render a vessel unseaworthy including improper stowage, weak containers, containers that can’t support weight, and the Valerio case which was decided in 1952 which is almost an all force for the facts in this case.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

It was on the vessel.

Potter Stewart:

Injury was on the vessel.

Harvey B. Nachman:

And the injury was on the vessel.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

But in these cases cited on page 14 of petitioner’s brief and others, they were ashore, Reboff was ashore and that was a combination of ship’s equipment and cargo, Valerio was ashore and it was cargo, Litwin was ashore and it wasn’t eve — it was neither cargo nor ship’s equipment, it was Stevedore’s equipment.

John M. Harlan II:

[Inaudible]

Harvey B. Nachman:

Yes, because the — it was — you — being use to load — it was a Baltimore dog, I think it’s both been used to load beams from a railroad car onto the winches, onto the ship’s tackle in order to put it aboard the vessel.

Potter Stewart:

Is the ship’s tackle broke or was it defected?

Harvey B. Nachman:

The Baltimore dog broke.

The Court says, that is the Court of Appeals says, that it will not cross the gangway because of the awesome obligations.

I can see that these obligations of non-delegable duty and of liability without fault maybe awesome, but the — they are prompted by the humanitarian consideration that the injury suffered by innocent victim is an awesome burden to sustain.

Potter Stewart:

Does the Longshoreman and Harbor Workers Act extend to Puerto Rico?

Harvey B. Nachman:

No.

Potter Stewart:

It’s not.

Harvey B. Nachman:

No sir.

We have the local Workmen’s Compensation Act —

Potter Stewart:

Compensation Act.

Harvey B. Nachman:

— of Puerto Rico.

Potter Stewart:

Does that purport to make the remedy exclusive as against the —

Harvey B. Nachman:

As against the employer.

Potter Stewart:

As against the employer.

Harvey B. Nachman:

Just as he does —

Potter Stewart:

Does it explicitly permit suits in third —

Harvey B. Nachman:

Yes sir, that’s —

Byron R. White:

— third party?

Harvey B. Nachman:

— that’s in — the statute is included in our brief.

It’s —

Potter Stewart:

Well, thank you, alright.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

No, no.

Arthur J. Goldberg:

[Inaudible]

Harvey B. Nachman:

No, Mr. Justice Goldberg.

If the longshoreman is struck by a tractor driven by another longshoreman, he cannot sue the vessel as being unseaworthy, nor can he sue the vessel owner for negligence, or if he is injured as a result of the negligence or the failure of his employer to provide something that he must provide by a statute and adopt.

This is a case and the other cases that are cited in the brief are cases that have arisen as a result of an unseaworthy condition that arose aboard the vessel, or negligence that arose aboard the vessel, that proximately resulted in injury aboard the dock.

And the — I have to jump because my time is just about —

Hugo L. Black:

Would you mind stating in a sentence just exactly what happened?

You say that — you’re drawing your distinction in showing seaworthy, what happened?

Harvey B. Nachman:

What happened?

Hugo L. Black:

What was it that happened that was wrong?

Harvey B. Nachman:

Broken bags of cargo were being discharged from the vessel.

They were unseaworthy when they were in the vessel.

Hugo L. Black:

How were they being discharged?

Harvey B. Nachman:

By draft, by a pallet, and as they were being discharged and across the ships —

Hugo L. Black:

Before they got to the shore.

Harvey B. Nachman:

Before — while they’re still on the — still connected to the ship that they swung — the thing swung over, then grain was falling onto the pier.

They have been observed — there have been observance of this all since the commencement of operation.

Hugo L. Black:

Now, the argument is that the fact that beans were dropped on the floor of the boat —

Harvey B. Nachman:

There is no question — there’s no.

Hugo L. Black:

— [Inaudible] tried that there would have been liability.

Harvey B. Nachman:

There’s no question that there would have been liability.

I don’t think it might —

Hugo L. Black:

But it depends on whether it extends to the injury brought about by the same swinging over and dropping of the beans.

Harvey B. Nachman:

That’s right.

I have no further time, Mr. Justice Black, but in the amicus brief, they say that this cannot extend because there is no jurisdictions in admiralty to the pier, but Admiralty Extension Act of 1948 specifically included these kind of occurrences, injury to persons and property on the shore, it’s been held constitutional and has been applied in all of the cases that are cited in this brief.

Earl Warren:

Mr. Bird.

Antonio M. Bird:

Mr. Chief Justice, may it please the Court.

There’s one point I think should be cleared at the beginning and it is the fact that this vessel was being discharged by an independent stevedoring contractor.

And there’s no evidence whatsoever in the record that any member of the crew or any officer of the vessel in anyway had anything to do with the discharging operations of the vessel.

We will concede that the negligent acts of the stevedoring contractor can make a vessel unseaworthy or can make the vessel liable based on unseaworthiness, but our best part under this case is the fact that this accident happened in an area over which the vessel had absolutely no right whatsoever of control.

The petitioner —

Arthur J. Goldberg:

[Inaudible]

Antonio M. Bird:

No, Your Honor.

In that case, under the doctrine established in the Strika case, the vessel was unseaworthy and on an unseaworthy condition of the vessel caused the injury to the man on shore and the vessel would be liable.

But our contention is —

Potter Stewart:

[Inaudible] it will depend upon who the man was, wasn’t it, so far — insofar as unseaworthiness liability.

If you were just — if you were — if you were a casual stranger who is walking along there, you wouldn’t be within the scope of the unseaworthiness liability, would you?

Antonio M. Bird:

In answering to Mr. Justice Goldberg’s question, I was assuming that this is a —

Potter Stewart:

Assuming [Inaudible] — assuming this plaintiff.

Byron R. White:

Well, he wouldn’t have [Inaudible]

Antonio M. Bird:

No, I would —

Byron R. White:

[Inaudible] if the accident happened because of defective bags.

Antonio M. Bird:

If the accident happened inside of a hole —

Byron R. White:

[Inaudible]

Antonio M. Bird:

— on board the vessel, and an unseaworthy condition was created because there was an unsafe place to work onboard the vessel, then I will concede that the vessel will be liable.

Byron R. White:

And, the fact the — it’s not defective bags [Inaudible] before the bags cleared the ship and then [Inaudible] on the vessel, that there would be no [Inaudible]

Antonio M. Bird:

Mr. Justice White, you must consider that from the moment those bags are being discharged from the vessel —

Byron R. White:

Yes, but at the time of [Inaudible], the bag was lifted on the hole [Inaudible]

Antonio M. Bird:

Yes.

Byron R. White:

[Inaudible]

Antonio M. Bird:

Then it’s —

Byron R. White:

[Inaudible]

Antonio M. Bird:

It’s the duty of the master of the vessel to see that those beans are swept there, there are beans carried on the deck of the vessel.

Byron R. White:

Well, now the — we’ll just assume that the defective bags [Inaudible]

Antonio M. Bird:

That’s my divide on line for the reasons that the vessel has absolutely no control of what’s going on the dock.

William J. Brennan, Jr.:

Well, that doesn’t seemed that [Inaudible] as the fact it came out of the hole, the [Inaudible] beans?

Antonio M. Bird:

The evidence that it is in the record, Mr. Justice Brennan, is that while they were in the process of being discharged, there was spillage and that there was some breakage.

William J. Brennan, Jr.:

From the time it came up by the hole, the hole [Inaudible]

Antonio M. Bird:

Well, Mr. Justice Brennan, the witnesses who have testified, were men who were standing on the dock.

We don’t have any evidence on this record after what happened onboard the vessel.

There was no testimony from any witnesses working aboard the vessel.

William J. Brennan, Jr.:

There was no testimony that there were spilling beans that [Inaudible]

Antonio M. Bird:

The only testimony there is, Mr. Justice Brennan, is that while they were on the process of being discharged, there was spillage on the dock.

Byron R. White:

[Inaudible]

Antonio M. Bird:

I don’t know of any —

William J. Brennan, Jr.:

Well, I don’t know, I was looking into this page 23, the accident occurred, [Inaudible] they were rolling the swing [Inaudible] of the ship, there was [Inaudible] that came out of the ship [Inaudible]

Antonio M. Bird:

This was the testimony of a man that is standing on a dock, Mr. Justice Brennan.

Hugo L. Black:

What is that — difference does that make if there were testimony whether you’re standing on the dock instead on the top of the ship?

William J. Brennan, Jr.:

He saw the spilling beans at the ship [Inaudible]

Potter Stewart:

Your point is that somebody on the dock simply couldn’t see the condition of the bags as they came out of the hold.

Antonio M. Bird:

Came out of the hold.

Potter Stewart:

So that’s the difference it makes.

It’s just a matter of physical impossibility to be seen.

Byron R. White:

Well you would then make any difference whether that [Inaudible] even though the bags were [Inaudible] beans on the ship?

As soon as it [Inaudible] beans on the dock, that’s the end of liability?

Antonio M. Bird:

That’s my position, Your Honor.

Once that the spillage was on the dock, it was the duty then of the stevedoring contractor to sweep that area and it was not the duty of the vessel nor put the vessel or even go to that place and order this work to be done.

Byron R. White:

Or, just because the — just because the bags are — assuming, assuming [Inaudible] defective bags, and that — that bag was [Inaudible] just might be impossible for [Inaudible]

Antonio M. Bird:

Mr. Justice White, our position is that this condition, if it’s existed onboard the vessel, it could make the vessel or it would make the vessel unseaworthy, if the man had been injured on the vessel because of the possession and control, the method has on the vessel.

Byron R. White:

[Inaudible] and it causes the spillage of the beans on the dock, the ship is liable?

Antonio M. Bird:

Because this is something that can be controlled by the ship, the boom, it can be controlled by the ship.

Byron R. White:

[Inaudible]

Antonio M. Bird:

If they know but there’s no evidence whatsoever that the ship knew that the bags were defective.

There’s no evidence whatsoever in this record that the ship knew that the bags were defective.

The only evidence is that the stevedoring contractor who was discharging these bags and there was a spillage and there was breakage, and that one bag —

William J. Brennan, Jr.:

[Inaudible] coopers were working aboard the vessel and on pier, sewing [Inaudible]

Antonio M. Bird:

And those coopers were the employees of the stevedoring contractor.

William J. Brennan, Jr.:

I know, but doesn’t this suggest [Inaudible] defective bags aboard ship?

Antonio M. Bird:

Yes.

William J. Brennan, Jr.:

Before [Inaudible]

Antonio M. Bird:

Yes.

Yes, it’s correct.

Earl Warren:

Mr. Bird, suppose this man was injured by the beans themselves falling, suppose instead of him slipping on the mat, they had hit the dock.

They had these falling beans had hit him in the eyes and it blinded him, would you still say that there — the liability of the ship had terminated because the boom had passed over the rail of the ship?

Antonio M. Bird:

No.

Earl Warren:

What is the difference?

Antonio M. Bird:

Because Your Honor, at that point, that is something that was under control of the ship.

I mean, if something falls from the ship and injures the workman, the workman then the ship can be held liable because this condition was created on the ship, but we must bear in mind that this condition was created on the dock.

This is something that fell on the dock — spillage is something, I mean, which is common knowledge, this is part of the regular stevedoring operations.

I mean, this is something you will have always when you’re discharging grain or rice or beans.

And once they’re on the pier, the only way of correcting their condition would be by sweeping and that is something which is beyond the control of the vessel.

The master of the vessel cannot go on shore until this people were told what they should do.

It’s beyond his control.

Now there’s one other point which has been raised in this — the —

Earl Warren:

And under those circumstances, no matter what the negligence of the ship might be, there would be no liability just because he didn’t have the obligation to clean it up.

Antonio M. Bird:

Oh no, Mr. Chief Justice, if there’s negligence of the vessel and there’s liability but we’re not in — we’re not considering there was any negligence on the part of the vessel in this case.

That’s the difference.

If there’s — if there’s negligence in the vessel, then there’s liability, but in this case we’re not considering there’s any negligence on the part of the vessel.

Hugo L. Black:

Do you remember the case, I forgot the name of it, it was decided by Mr. Justice McReynolds as I recall it, to the effect that — let’s say one of these swinging things that let open and hit a man on the dock, the ship couldn’t be held liable because of that [Inaudible]

Antonio M. Bird:

Well —

Hugo L. Black:

And as I recall it — as I recall it, we —

Antonio M. Bird:

There are two or three cases (Voice Overlap) there are two or three cases.

Prior to the adoption of the extension of Admiralty Jurisdiction Act, there were several cases which held that the claim of damages for injuries on a dock side were to be ruled by the local state law.

Now, one of the points we have raised is that the court lacks jurisdiction because its jurisdiction is based precisely on the extension of Admiralty Jurisdiction Act.

This Act specifically extends the Admiralty Jurisdiction to injury to persons caused by vessels, injury to person caused by vessels.

In this case, the injury, I cannot – [Inaudible] alleged it was caused by the vessel, the injury was caused by a condition which existed on the dock created by the fellow workers of the petitioner himself.

Antonio M. Bird:

There’s no evidence, there’s not a scintilla of evidence in this record to show that the vessel in any way, in any way contributed in any manner to this injury.

The only evidence there is and I repeat is the fact that this cargo was being discharged by the fellow workers of the petitioner who received the instructions of their employer and that they failed to correct this condition created by themselves on the dock, it was in no way created by the vessel or by the ship.

Earl Warren:

I thought Mr. Bird you told me a moment ago there was no question of negligence in this case. It may sue for both unseaworthy —

Antonio M. Bird:

No, Your Honor —

William J. Brennan, Jr.:

— and negligence and didn’t the court below — didn’t the trial court find that they were — that it was both unseaworthy and that there was negligence?

Antonio M. Bird:

Mr. Chief Justice, I must have misunderstood your question.

I don’t claim that there’s not an issue of negligence on this case. On the contrary, I consider it’s an issue of negligence, but —

Earl Warren:

We must — we just misunderstood each other.

Antonio M. Bird:

Yes.

Earl Warren:

It’s alright.

Alright, okay.

Antonio M. Bird:

But my contention is that the court had no basis whatsoever to make a finding of negligence.

My distinguished brother has spoken about the test of foreseeability.

Well, there’s not a scintilla, there is no evidence whatsoever that the ship had any knowledge whatsoever of this condition on the dock.

The only evidence I repeat, the only evidence there is, is to the fact that the condition was created by the independent stevedoring contractor.

Earl Warren:

Well, what do you do with Finding 9, which says that the shipowner was negligent in committing the broken and weakened bags to be discharged when it knew or should have known that injury was likely to result to persons in the service of the ship who had to work on and about the spilled beans.

Antonio M. Bird:

Our position is here that — as it was in the Circuit Court, that the court, the trial court, had no basis whatsoever to make that finding.

There was no basis for the trial court to make such a finding.

That the —

Earl Warren:

How about the evidence that Mr. Justice Brennan just called to your attention about them having knowledge of it to the extent that they had these bags being repaired on the ship during the course of the operation.

Antonio M. Bird:

By the independent stevedoring contractor who was in charge of the operations, but there’s no evidence whatsoever that the vessel in any way, in any way had anything to do with this type of work.

Hugo L. Black:

I thought the court went on the basis — maybe I’m wrong — that they couldn’t show that these particular beans have either — have stepped on and fell were the beans that came out of these particular sacks, that’s defective.

Antonio M. Bird:

Well, there was evidence —

Hugo L. Black:

Wasn’t that one of its grounds?

Antonio M. Bird:

Yes, there was —

Hugo L. Black:

[Inaudible] grounds?

Antonio M. Bird:

There was evidence before the Court that there was spillage but there was also that during the process of discharging, a bag fell from about 35 feet high, fell on the dock and spread its contents.

So we had there beans which had fallen while being discharged by the stevedoring contractor, had fallen from the pallet, [Inaudible] of any evidence whatsoever that the ship had anything to do with that work?

Hugo L. Black:

Do you mean — you mean that the [Inaudible] that the evidence that some beans fell, came out of the sacks above, evidence that some of the beans were came from a broken sack?

Antonio M. Bird:

Yes.

Hugo L. Black:

And they couldn’t tell which beans he had slipped on and therefore there’s no evidence of negligence.

We had something like that about the railroad crackers some years ago, so they couldn’t prove which cracker he fell on.

Antonio M. Bird:

Well —

Hugo L. Black:

That’s the ground, isn’t it, but the Court [Inaudible]

Antonio M. Bird:

That’s one of the grounds —

Hugo L. Black:

— the Court of Appeals.

Antonio M. Bird:

That’s one of the grounds for the reversal of Court of Appeals.

Hugo L. Black:

On the ground that there was no negligence because he couldn’t show that the particular bean that he happened to fall over.

Antonio M. Bird:

Well, that was —

Hugo L. Black:

— that that had come from the above.

Antonio M. Bird:

One of the grounds, Mr. Justice Black —

Hugo L. Black:

Are you standing on that ground?

Antonio M. Bird:

Oh yes, I also stand on that ground.

Hugo L. Black:

You are?

Antonio M. Bird:

Yes, sir.

I stand on that ground.

There is one last point and it’s — it’s a question of laches.

The trial court ruled out the defense of laches under the theory that because the witnesses were available and because there were certain records available that the respondent had not been in anyway prejudiced, the record clearly shows — one, that petitioner after having hired an attorney, he slumbered in his rights for several months until he retained the firm of Messers Nachman on Feldstein.

First having spoken to them and explaining his problem, and because Messers Nachman or Feldstein could not handle the case until they obtained clearance from Mr. Cole, they waited until five or six months after the petitioner spoke to Mr. Feldstein.

I will concede that this by itself, will not bar the action unless it is shown that the respondent was prejudiced by the delay.

Now, the record shows very clearly that this petitioner, shortly after the appearance, he gave out sworn statements to an investigator of the Puerto Rico State Insurance Funds and in that sworn statement, he describes the occurrence as — that when he — the winchman pulled a sling in order to protect himself, he had to back out and he fell.

Now, at the trial, he gives an entirely different version.

Petitioner also in the first statement gives the hour of the occurrences as — that it happened at 10 in the morning, at a deposition, he gives sometime earlier than the other time, and then at trial, he gives another time.

We raised these points to show that the memory of the witnesses after over three years was not the same, I mean, their memory; they could not recall the instance of the actual occurrences as they actually happened, and we believe that for that reason, there was enough in the records to show that the respondent had been prejudiced, was prejudiced, and that the action was barred by the statute of limitations.

Earl Warren:

What counsel said that — that he gave you a list of all of his witnesses and that the company never even took the trouble to interrogate any of them?

Antonio M. Bird:

After, this is something I might even have to go off the record, I mean, you have to know the problems we have with investigating of these cases in Puerto Rico where this longshoreman have refused to even discuss the cases.

By the time we’ve got that, that list, all this time had left, they had already been retained by — I mean the — libellants had already retained his counsel and these were their witnesses, the one who want to testify for the libellants.

At the time of trial, it was shown at the end that their memory — and this was not too long after the filing of the libel, not such a long period went by from the filing of the libel which were the first time that the respondent learned of the clients.

The respondent didn’t — had any knowledge whatsoever of the clients until about two and a half years after the — after the — the accident.

There is one last point which was raised by my brother here, and he mentioned for the fact that we should adopt uniform statute of limitations in this connection with this case, and he suggests that we follow the two-year stat — statute of limitations provided by the Jones Act.

Antonio M. Bird:

I would respectfully like to call the Court’s attention for the fact that it is the law in our jurisdiction as established in a case called, Flores versus [Inaudible] decided by the First Circuit a couple of years ago that when a seaman is injured within the territory — territorial waters of Puerto Rico and his employer is covered by the local Workmen’s Compensation Act, that the remedy of that seaman, the exclusive remedy is to go before the Puerto Rico State Insurance Fund and he cannot sue his employer under the Jones Act.

That case was decided by the First Circuit and this Court; they denied a petition for certiorari.

I would suggest that if that is the law in connection with the seaman in Puerto Rico, because of the special distinction has been made, because of Puerto Rico’s peculiar political status, I would say, that in the case of a longshoreman which is discovered by the Workmen’s Compensation Act, which Congress has delegated and the legislator of Puerto Rico to ruin on his rights.

If the local law of Puerto Rico establishes the one year statute of limitations, I believe that an exception should be made in that case particularly when the provisions of the Jones Act are not applicable to either a seaman or longshoreman injured within the territorial waters of Puerto Rico.