Howlett v. Birkdale Shipping Company, S.A. – Oral Argument – April 20, 1994

Media for Howlett v. Birkdale Shipping Company, S.A.

Audio Transcription for Opinion Announcement – June 13, 1994 in Howlett v. Birkdale Shipping Company, S.A.

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William H. Rehnquist:

We’ll hear argument next in 93-670, Albert Howlett v. Birkdale Shipping Company.

Mr. Sovel.

Charles Sovel:

Mr. Chief Justice, and may it please the Court:

In Scindia Steam Navigation Company v. De Los Santos, this Court held that a shipowner’s duty of care owed to longshoremen extended to unsafe conditions existing at the start of cargo operations and that, as to such conditions, the shipowner had a duty of inspection.

The Scindia decision did not specifically address the issue of whether this duty applied to unsafe conditions existing in a cargo stow.

Nor did it make any distinction based on who may have created a particular unsafe condition.

Rather, the focus of the Scindia decision was on the shipowner’s knowledge of an unsafe condition, with the principle issue in Scindia being the ship… on the shipowner’s duty of inspection.

Thus, in Scindia, this Court held that, as to unsafe conditions existing at the start of cargo operations, the shipowner had a duty of inspection and was charged with knowledge of those conditions, which would have been discovered by a reasonable inspection, but that once cargo operations began, the shipowner had no ongoing or continuing duty of inspection to discover unsafe conditions which might arise within the confines of those cargo operations.

In Derr v. Kawasaki Kisen K.K., the Third Circuit erroneously interpreted Scindia as relieving a shipowner from any duty of inspection with respect to unsafe conditions in a cargo stow, no matter when or by whom that condition was created, and without regard to whether a particular unsafe condition may have existed at the start of cargo operations.

Anthony M. Kennedy:

Is a cargo stow an object or a function?

Charles Sovel:

I–

Anthony M. Kennedy:

Or a… or a task or a place?

Charles Sovel:

–I consider it a condition of the vessel.

I consider it essentially… it’s… it’s a fact.

It’s a… a… it becomes part of the stow.

Part of the stow becomes part of the ship because it is what the ship is being carried.

Anthony M. Kennedy:

So, when we’re talking about a cargo stow, we’re talking about a certain place on the ship, plus the functions that were necessary in order to put the cargo in that place?

Charles Sovel:

Plus the functions and the operations and how that cargo is held in place or stored in place in the ship.

I’m not clear on what the reference is to functions, but longshoremen would place… take the cargo from the cargo hook, move it into the stow, and place it in the position… and, presumably, in some manner, that cargo would be secured in place and you’d end up with a cargo stow that would be presented to the discharging longshoreman.

And that is… then becomes a factual, physical condition that exists at the time the unloading longshoremen go aboard the ship.

Sandra Day O’Connor:

Well, do you argue that the shipowner has a duty to go into the cargo stow area after it has been loaded on board to see the condition of it and to try to determine if there are any hidden defects or problems?

Charles Sovel:

No.

As a–

Sandra Day O’Connor:

Is that your argument?

Charles Sovel:

–No.

As a general proposition, no.

Although factually there might be certain types of cargo stows where that might in fact be done.

My argument is only that the shipowner should be held responsible for that which the shipowners already do in the manner in which they observe the way cargo is being stowed, the conditions that would be disclosed by such inspections–

Sandra Day O’Connor:

Well, are you arguing that the shipowner only has a duty of care as to conditions that are open and obvious in the stow?

Charles Sovel:

–To the extent that that phrase might be tantamount to something that is discoverable by a reasonable inspection, I would plead the answer is yes.

Charles Sovel:

It’s a question… is it something that can be seen and be determined by the crew of the ship conducting the normal type of inspection that they would be?

Sandra Day O’Connor:

So, your theory is, if it’s an open and obvious problem in the cargo stow area, then the shipowner is liable if in the unloading process someone is injured by virtue of that condition?

Charles Sovel:

If it was open and obvious… and they have become somewhat words of art and I want to use them carefully if I may… if it was open and obvious sufficiently to be observed at the time of loading, even though it may subsequently, in the course of loading, be concealed, it is a condition that the shipowner should be responsible, because it is the type of condition which would… he would have knowledge of if he made the observation.

Sandra Day O’Connor:

Well, what if it’s open and obvious before, during and after the original loading, and it is open and obvious at the time of the unloading?

Charles Sovel:

If it’s open and obvious at the time of the unloading, insofar as there might be any duty to warn of that condition, the fact that it is open and obvious constitutes the warning.

However, the question would still remain as to whether, assuming we have an open and obvious condition that is unsafe… which is what you had in the Woods decision from the Fifth Circuit and in the Riggs decision from the Ninth Circuit… there… the… the… the condition of that stow may still be such that it cannot be discharged with reasonable safety, and then the shipowner’s negligence would survive the fact that it is open and obvious and would still be–

Sandra Day O’Connor:

Was… was there a finding by the District Court here that the plastic that was laid under the cargo was an open and obvious condition?

Charles Sovel:

–Not in… not in that sense.

What the trial judge here stated, that based on the argument that the presence of the plastic would have been open and obvious to the loading longshoremen, that therefore, since it was open and obvious, the… under Scindia, the shipowner wasn’t liable.

But that ignores the fact that it wasn’t open and obvious to the discharging longshoremen.

It was concealed by that.

And it was a total non sequitur.

Sandra Day O’Connor:

Well, I just thought… I just thought that the District Court had made a finding that it was open and obvious.

Charles Sovel:

No.

The District Court, in essence, made an argument that if we were arguing that it could have been observed by the loading stevedore and was open and obvious to them, then, by definition, it had to be open and obvious to the discharging longshoremen or to the discharging stevedore.

William H. Rehnquist:

The District–

Charles Sovel:

He did not find that.

William H. Rehnquist:

–The District Court granted summary judgment for the respondent, didn’t it?

There was no trial?

Charles Sovel:

That is correct.

And there shouldn’t have been no findings.

I mean, it’s a question of sufficiency.

William H. Rehnquist:

If there’s no finding in the sense of it being in a bench trial?

Charles Sovel:

That is correct.

William H. Rehnquist:

Now, are you saying that the shipowner had a duty to inspect here?

Charles Sovel:

I… I’m saying that the shipowner has a duty to conduct reasonable inspections of the manner in which the cargo is stowed, yes.

William H. Rehnquist:

Well, what’s your authority for that proposition?

Charles Sovel:

My… my authority for that proposition is the general negligence duty created by Scindia, which it would be no different than inspecting for other conditions which exist on a ship when the ship comes in and is presented to the discharging longshoremen.

Antonin Scalia:

But, Mr. Sovel, as I understand Scindia… correct me if I’m wrong… in Scindia, there was no negligence by a person engaging in providing steve… stevedoring services to the vessel, was there?

Wasn’t it just negligence by the–

Charles Sovel:

Well, the… the problem in that–

Antonin Scalia:

–By the vessel?

Charles Sovel:

–In the Scindia case… the Scindia did not involve an unsafe condition existing at the start of cargo operations.

Antonin Scalia:

Well, regardless, start, finish.

Charles Sovel:

Okay.

Antonin Scalia:

There was no negligence by a… by persons engaged in providing stevedoring services.

Charles Sovel:

That’s correct.

Antonin Scalia:

But that is what we have here.

Now, there may… here, there may also be negligence, as you say, by the shipowner, but there is undoubtedly negligence by the person providing stevedoring services.

Charles Sovel:

Yes, by the… but–

Antonin Scalia:

And the statute reads, it seems to me, very clearly, that if the injured person was employed by the vessel to provide stevedoring services, no such action shall be permitted if… if the injury was caused by the negligence of persons engaged in providing steve… stevedoring services to the vessel.

That clause is absolutely flatly applicable here.

It was not applicable in Scindia.

Charles Sovel:

–No… that cause, which also was interpreted in Edmonds, has to refer to negligence by the employer stevedore.

William H. Rehnquist:

Well, that’s not what it says.

Charles Sovel:

And it’s not what it says.

William H. Rehnquist:

It’s… it’s flat… it’s a flat statement.

It doesn’t limit it the way you say it.

Charles Sovel:

Okay.

But the decision of this Court in Kopke v. Cooper Steve… Cooper Stevedoring v. Kopke made the decision between the employer stevedore and the nonemployer stevedore for purposes of section 5, in which it held that just because you had an employer stevedore who was… because that employer… that stevedore, who was not the employer, was subject to suit by the… an injured longshoreman and by the shipowner as well, who stood in the sues… in the shoes of the longshoreman in that situation.

The consistent decision has always been that the employer term refers to the employers of the injured longshoreman… even though you could have… the Act itself defines employer as any employer of longshoremen or any stevedore… the language has always been that the exclusive remedy provisions of section 5, which limit the remedy of the longshoreman against his employer, against the stevedore, only apply to the employer stevedore.

William H. Rehnquist:

What is the citation to Kopke?

It isn’t in your brief, I don’t believe.

Charles Sovel:

It’s in the reply brief.

William H. Rehnquist:

In the reply brief?

Charles Sovel:

Yes.

And it’s cited at Cooper Stevedoring v. Kopke, 417 U.S. 106.

William H. Rehnquist:

Thank you.

Charles Sovel:

Referred to at page 10 of the reply brief.

Harry A. Blackmun:

Mr. Sovel, have you pursued a claim against anyone else other than the shipowners?

Charles Sovel:

Well, we have a claim also… a pending claim against the… the… the… the answer to that essentially is no.

There is a question as to whether this shipowner was the charterer or the actual owner.

And that issue is… is really held in abeyance.

I have a suit pending against them, depending upon what happens here.

But there is not a suit against any other party.

So, the… but coming back to Kopke, Kopke is a situation in which… it essentially is a situation where an American longshoreman is suing an American stevedore, who is not his employer.

And the issue was raised as to the division of damages between that stevedore and the shipowner in that case.

And they… this Court, in Kopke, specifically held that there was a right to sue, because that… that stevedore, because he was not the employer.

Antonin Scalia:

But the word “employer” is not used in… in the provision that… that seems to flatly cover this case.

What… what word “employer” to which Kopke could be relevant appears there?

It says that if the injured person was employed by the vessel to provide stevedoring services… that was the case here–

Charles Sovel:

Okay.

Antonin Scalia:

–No such action shall be permitted if the injury was caused by the negligence of persons… it doesn’t say employers.

Charles Sovel:

Okay.

Antonin Scalia:

By the negligence of persons engaged in providing stevedoring services to the vessel.

So, what–

Charles Sovel:

Yes, that’s correct.

But, Your Honor, that’s not the only negligence that is involved here.

Because if the shipowner is neglig–

Antonin Scalia:

–It doesn’t say if… if it isn’t caused solely by the negligence, it said, if it was caused by the negligence of persons engaged in providing stevedoring services… not employers engaged in… just persons providing stevedoring services.

Charles Sovel:

–Well, but that would then say that anybody, including a nonemployer stevedore–

Antonin Scalia:

Yes.

Charles Sovel:

–Is to be exempted.

Antonin Scalia:

That’s… that’s what it says.

Charles Sovel:

No, I don’t… I… I don’t think that… it would be inconsistent to hold.

That would be inconsistent with Kopke and with–

Antonin Scalia:

Why?

Kopke deals with who is an employer.

The word “employer” is not used here.

Charles Sovel:

–Well, the term “stevedore”… the stevedore is the employer, and it’s the exclusive remedy provision of the Act that… that you’re dealing with here, Your Honor.

Charles Sovel:

In other words, you say that… he… the… when they amended the Act, they said that the… they were saying that the shipowner would not be liable for a negligence of the stevedore in the context that they’re referring to the employer stevedore.

Essentially, that’s the same argument that–

Antonin Scalia:

They could have said that.

They could have said, if the employer stevedore is guilty of negligence, the employer won’t.

But it didn’t say, if the employer stevedore.

It said, if the stevedore… if… if… if the person providing stevedoring services was negligent, the vessel is not.

Charles Sovel:

–Well, then, in that case, Your Honor, you’re… the… essentially, the same type of argument was considered by this Court and rejected by this Court in the Edmonds case.

Because there, the argument was that we should–

Antonin Scalia:

In… in what case?

Charles Sovel:

–In Edmonds.

Antonin Scalia:

Edmonds?

Charles Sovel:

Edmonds, where the argument was made by the stevedores… by the shipowner that they should apportion the damages between the employer and the stevedore.

And that specific phraseology of the statute was considered.

And they said that it didn’t preclude the action against the vessel under those circumstances, even though you have a situation where a stevedore was negligent.

If you were to take that language totally, Justice Scalia, then you would be eliminating liability based on joint negligence.

And suppose you have a situation where you had both negligence by the shipowner and by the stevedore.

Under the interpretation of that language–

Antonin Scalia:

Which is what we have here.

Charles Sovel:

–Yes… well… and therefore… but that was specifically rejected in the Edmonds case.

That was the specific argument that was made and the specific… it was rejected… that the shipowner cannot excuse its own negligence by saying that the stevedore was also negligent.

Antonin Scalia:

Well, but there… there, the negligence was… was independent, separate negligence, not what you have here… the negligence of the shipowner in failing to catch the negligence of the stevedore.

I mean, it’s all in the same line of causality.

Charles Sovel:

Your Honor, if I might posit a situation to the Court.

Suppose we have a cargo, say, electronic… electronic parts, loaded on a ship in Japan or Korea.

And the ship loads that cargo.

It’s… the stevedore loads it there.

It’s loaded improperly.

It comes to the United States.

Cargo… when the longshoreman goes into the hold, the cargo falls and crushes the longshoreman, kills him, and the box of cargo gets broken all over the place.

The cargo owner could then sue the ship, but the injured longshoreman could not.

Charles Sovel:

I don’t think Congress ever had any idea that that’s what this statute would intent to result in.

Antonin Scalia:

Maybe it should have written something else then if it didn’t have such an idea.

Charles Sovel:

Well, I think it did when it said that they have negligence based on State law.

And it was addressing the issue of the fact that we’re not… we wanted to make sure that the exclusive remedy provisions of the statute would not be interpreted in such a way as to make the employer longshoreman liable for any more than its compensation liability.

Antonin Scalia:

Maybe you know that, Mr. Sovel, but I only know what I read in the statute.

And it doesn’t have any of that in it.

Charles Sovel:

Well, that… if you were to accept that same interpretation, Your Honor, your… the decision in this Court in Edmonds would have been different.

It’s already–

William H. Rehnquist:

Well, the decision in Kopke wouldn’t have been.

It seems to me that that… that involves quite different.

Charles Sovel:

–Well, Kopke involves the interpretation that when you… viewing the term “employer”–

William H. Rehnquist:

Which isn’t what we’re talking about here.

Charles Sovel:

–No.

That you… that the… or… or in the term “stevedore subject to the Act”, which is the phrase used in the legislative history, that that is referring only to the employer.

Now, that’s one face of Kopke.

Edmonds handles the other aspect of that… that, if you would interpret–

William H. Rehnquist:

Well, but surely… surely we’re not going to say the legislative history prevails over the language of the statute?

Charles Sovel:

–No.

But the… the language of the statute, as pointed out in Edmonds, is somewhat inconsistent between the phrase that the shipowner shall be liable for its negligence and that the stevedore shall be liable for its negligence.

And then this Court rejected that type of separation and said that the… this does not preclude liability based on joint negligence.

And, therefore, under Edmonds–

William H. Rehnquist:

Yes, but what we have here surely is not joint negligence in the sense that we’re talking about it in Edmonds?

Charles Sovel:

–No.

We… well, we have a situation where, under principles of negligence law, a shipowner would have a duty of inspection.

Suppose if we had a situation where the shipowner says, I saw that no plastic was placed under this stow.

And the… a factfinder… remember, this was a motion for summary judgment… could conclude that the shipowner did have knowledge of it.

Then the shipowner would be liable based on that knowledge, even though the stevedore may have been the party that created the condition.

So–

William H. Rehnquist:

And so you jump from that to there’s a duty to inspect.

Charles Sovel:

–Well, I… I think that there is a duty of reasonable inspection with respect to the manner in which cargo is stowed… which is the traditional duty… not duty so much as what the practice is.

Charles Sovel:

They do inspect.

It’s never been denied that they inspect.

And now what they’re saying here is that, even though we inspect and even though we see, we’re not going to be held responsible.

William H. Rehnquist:

But if you’re right and they did in fact inspect, then they would know.

Charles Sovel:

Right.

William H. Rehnquist:

And you wouldn’t have to rely on any duty to inspect.

Charles Sovel:

That’s right.

William H. Rehnquist:

But I gather from what you say that that’s contested.

And so you have to rely on a duty to inspect.

Charles Sovel:

No, it’s not contested in the facts of this case that they did in fact inspect.

But–

William H. Rehnquist:

So, you don’t rely on any duty to inspect; is that correct?

Charles Sovel:

–Not in this case.

I think that the… there should be a duty of reasonable inspection with anything that is turned over to the long… to the discharging longshoremen.

However–

John Paul Stevens:

I’m really getting confused now.

I thought it was essential to your case that there be a duty to inspect the loading operation.

You… you say that’s not true?

Charles Sovel:

–I say that it is not true that you have a… an actual duty to inspect.

I think that there is a… I think there should be a duty to inspect.

But in the facts of this case and in the facts of most cases, where you offer testimony showing what the inspection is and that they do do it, that the shipowner should be held knowledgeable for what that would disclose.

John Paul Stevens:

Well, but if they do it, you’re saying they’re doing it negligently.

But it–

Charles Sovel:

Yes.

John Paul Stevens:

–It doesn’t matter if it’s… if they do it negligibly unless they have a duty to do it.

Charles Sovel:

Right.

Well–

John Paul Stevens:

But I’m trying to… I really want to be sure I understand.

Charles Sovel:

–Okay.

John Paul Stevens:

Do you… can you prevail in this case and still assume that the shipowner had no duty to inspect the loading operation?

Charles Sovel:

Yes.

If in fact… and the evidence shows… that they did in fact do it.

And in fact–

David H. Souter:

Well, doesn’t the evidence have to show that they did in fact know the plastic was there, as opposed to simply standing there while plastic was put down?

Charles Sovel:

–No.

The… the evidence in the case… in the specific testimony… the captain was that if the plastic had been placed on the deck, the crew members would have seen it and would have reported it to him.

David H. Souter:

So, you’re saying the evidence, in effect, was that they did see it?

Charles Sovel:

They did see it.

David H. Souter:

Because they were standing there and they must have?

Charles Sovel:

Right.

That they could see it.

And–

David H. Souter:

But if a finder of fact concluded that they did not in fact see it, then you’d have no case… unless we hold that–

Charles Sovel:

–Well–

David H. Souter:

–Unless we hold that there is in fact a duty to inspect, as Justice Stevens suggested?

Charles Sovel:

–If the factfinder found that they did not… the factfinder would have to find that there is… that they… it was not a condition which they could see based on the inspections which they admittedly made.

And, in fact, after the Derr case was decided, we offered evidence in Derr that these inspections were created… the Third Circuit has even rejected that… so that, basically, I say there’s a duty to inspect, but that this duty is no more broad… no broader than what they are in fact doing.

I mean, it’s not an onus to them, but they have a duty, for instance, to inspect how a winch is repaired.

Do they have other types of duties to inspect other equipment?

Does it matter whether–

David H. Souter:

No.

But if they… if they have a duty to inspect, presumably, by definition, they have a duty to exercise a certain degree of care in the inspection.

So, the things which ought to have been seen are things that are going to be charged to their knowledge.

Charles Sovel:

–Right.

David H. Souter:

If they don’t have a duty to inspect, then the most you can rely upon would be proof that they actually did know that the plastic was here.

Charles Sovel:

Yes.

David H. Souter:

Okay.

Charles Sovel:

That would be correct that… I think… while under the facts of this particular case, having established the inspection, and that it was a kind of condition that is… was capable of being observed on inspection, that should have been sufficient to–

David H. Souter:

No.

But that’s… that’s–

Charles Sovel:

–That’s different.

David H. Souter:

–It seems to me that is simply another way of saying, well, they actually did have a duty, because we’re going to charge them with knowledge of what they would have learned making a reasonable inspection, whether we have direct proof that they knew it or not.

Charles Sovel:

Okay.

And then they–

David H. Souter:

Isn’t that fair to say?

Charles Sovel:

–Yes.

And I think that they have a duty, under Scindia, to provide a ship which is in such condition that it can be discharged with reasonable safety.

And that would include the cargo stow.

And with how that cargo stow then becomes unsafe is really irrelevant.

Ruth Bader Ginsburg:

How does one discharge that duty?

To what extent is there an obligation to supervise the stowing of the cargo to make sure that the ship is in safe condition to be unloaded when it gets to the unloading port?

Charles Sovel:

To the extent that the term “supervising” implies anything more than the observations that they would make of the normal stowage, I’m not claiming that there’s a duty to supervise.

I am claiming that–

Ruth Bader Ginsburg:

But you said there’s a duty to make sure that the cargo is in safe condition to be unloaded.

Charles Sovel:

–Right.

Ruth Bader Ginsburg:

So, can you be as precise as you can in telling me how one discharges that duty?

Charles Sovel:

Okay.

It would, in various cases, depend upon the type of cargo that is being handled.

But, for instance, in this case, observing that the plastic or whatever it is that they’re supplying, when they admit that they have to make sure that something is under the stow of cocoa beans, that they would be observing to see that is present… they’ve admitted that.

In the case where you have improperly stowed steel, such as Woods or Riggs or those cases, just looking at the cargo is all they have to do.

In fact, you can bring in testimony that they looked and observed the cargo and saw it.

Ruth Bader Ginsburg:

Well, what is it that… what is the relevant thing that they’ve admitted here?

Charles Sovel:

Here they admitted, first of all, that they… they inspected; that they would have seen the plastic if it was placed under it; that they required that something be placed under the cocoa beans so that, to that extent… by the way, they’re supervising what the stevedore does, they are giving them the material… the only source of the plastic or paper or whatever it is has to come from the ship.

The ship pulled into Guayaquil, Ecuador, and anything that they needed to load the cargo was supplied by the ship.

The duty… there… someone at the ship required that something be placed under it.

And the fact that the crew members were there and would have observed it.

Basically, that case… and I always maintained… this case should have been, even under Derr, presented a prima facie case of vessel liability because you have proof of… from which a factfinder could find actual knowledge of the condition.

It was certainly not a matter of summary judgment, and summary judgment should not have been granted.

But all you’re saying is that they have the same duty of observation that they would, depending on the circumstances of each case.

I’m not asking that they be required to make a separate duty based on safety for longshoremen.

Charles Sovel:

Because that really isn’t necessary.

But the same duty that they perform or same task that they perform… making sure that the cargo is stowed safe for purposes of delivery… is going to reveal the same thing.

The problem here is that you have a situation where, even though under the customary practices and in each case if you took the testimony of the chief mate or the captain, as we did in this case, you would find out what they did.

That if they have a condition that they could have observed by the reason of what they did, that they could… should not be permitted to say, well, we weren’t inspecting for safety; we were only inspecting for the safety of the cargo.

And, therefore, even though we have information that would normally trigger a duty to use reasonable care to correct this condition, we don’t have to do it because we don’t have any responsibility for safety.

Sandra Day O’Connor:

Mr. Sovel, what was the theory of the District Court when it granted summary judgment?

Did the District Court rely on the notion that the shipowner had no duty to inspect, or no duty of care here?

Or did it rely on the theory that you would have to show actual knowledge?

Charles Sovel:

The ship… the District Court here, relying on Derr, said that there was no duty to inspect and no duty to do anything with respect to cargo, period… nothing.

And it didn’t matter on the other things, because–

Sandra Day O’Connor:

Well, when I… when I read the District Court’s opinion, I interpret them… it as saying there… the condition of the plastic was open and obvious.

So, it wasn’t going to make any difference.

Charles Sovel:

–No.

Sandra Day O’Connor:

Because the unloading people would see it, too.

Charles Sovel:

Well, the… the… it has to go back, Your Honor, to the Derr holding.

The Derr holding was that a vessel would be liable for unsafe conditions in the cargo stow only if you could show actual knowledge on the part of the shipowner of the condition and that the condition was not open and obvious.

Based on Derr, in preparing this case and arguing it in the District Court, I offered the testimony of the… the… the captain as to the condition to prove actual knowledge of the condition.

And the testimony of the plaintiff that the condition was not open and obvious to him and was not one that he could expect.

The District Court stated in the opinion, in a part of the opinion… which I have to say very respectfully to the District judge… makes no sense.

Because he said was, well, if this condition was capable of being discovered by the loading longshoremen in Guayaquil, Ecuador, then, by definition, it was an open and obvious condition.

And under Scindia, the shipowner isn’t liable for open and obvious condition… which, by the way, is contrary to the holding in Scindia… and from that he says, therefore, it had to be open and obvious to the plaintiff in this case, when there clearly was evidence it was not open and obvious to him.

I mean, the decision… the statement that if it was open and obvious to the loading longshoremen at the time it was created, by definition, it has to be open and obvious to the discharging longshoremen makes no sense.

It’s a non sequitur.

The condition was concealed.

And that, therein, is the problem with respect to the situation as far as a… from the standpoint of the discharging longshoremen.

Because the condition, if they observe it during the creation of cargo operations, subsequently it becomes concealed, and then both he–

William H. Rehnquist:

By stacking cargo on top of the–

Charles Sovel:

–By stacking it on top of it, yes.

If the Court pleases, if there are no further questions, I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

–Very well, Mr. Sovel.

William H. Rehnquist:

Mr. Buchholz.

Carl D. Buchholz, III:

Mr. Chief Justice, and may it please the Court:

Despite the Petitioner’s denial to the contrary, as Justice Scalia has pointed out, the duty that he seeks to impose in this particular case… and we really do have a conflict with the Third, the Ninth and the Fifth Circuits that underlies, I think, the whole case.

Anthony M. Kennedy:

Just as a preliminary before you get into that conflict, who… who was Howlett employed by?

Who was his employer?

Carl D. Buchholz, III:

Northern Shipping Company.

Anthony M. Kennedy:

Is that–

Carl D. Buchholz, III:

Which is a stevedoring company.

Anthony M. Kennedy:

–That’s different from the vessel, I take it?

Carl D. Buchholz, III:

Yes.

It’s called Northern Shipping Company, but it… it is a stevedoring company.

It has nothing to do with the vessel or–

Anthony M. Kennedy:

Well, how… how does the statutory exclusion on which you rely then apply?

Because the statute says, if such person was employed by the vessel to provide stevedoring services.

And here the vessel was not the employer.

Carl D. Buchholz, III:

–We’re… we’re… they’re seeking to impose liability on us, not for the negligence of Mr. Howlett or his employer… they’re looking to impose liability on us for the negligence of the loading stevedore in Guayaquil, Ecuador.

Anthony M. Kennedy:

But you rely, I take it, on the second sentence of the provision in section 5(b)?

Carl D. Buchholz, III:

That and the numerous references in the legislative history that says a shipowner should not be liable for the negligence of another party, including the stevedore.

You have loading–

Anthony M. Kennedy:

Well, but the statute says, if such person was employed by the vessel to provide stevedoring services.

And he wasn’t employed by the vessel.

So, he is not within the… the exclusion.

Or am I just missing something?

Carl D. Buchholz, III:

–I think… I think you’re missing the Act.

He… he is employed by the vessel to… you’re looking at it… that it’s Northern Shipping that’s hired by the vessel.

I think that’s just loose language.

Anthony M. Kennedy:

Well, you said… you said that he was employed by someone other than the vessel.

So, I don’t see how the statute works.

Carl D. Buchholz, III:

I think the reference is there.

Mr. Howlett is employed by Northern Shipping Company, which is hired by the vessel.

Carl D. Buchholz, III:

I think the language used in that Act, as well as other acts, is that those longshoremen employed by Northern are, quote, hired by the vessel.

Anthony M. Kennedy:

So that we don’t have to follow the precise language of the Act?

Carl D. Buchholz, III:

I’m not… I’m not sure that I understand.

Anthony M. Kennedy:

Well, I… I take it that your… your case requires a very close interpretation of the Act in order to allow the… the vessel the exemption which it gives.

But I just don’t understand how the Act works.

I don’t want to spend too much time on this, because the conflict between the Third and the Ninth Circuit is a very real one.

Carl D. Buchholz, III:

Right.

Anthony M. Kennedy:

But I’m… I’m just somewhat–

Carl D. Buchholz, III:

My argument, Your Honor–

Anthony M. Kennedy:

–I’m uncertain as to how… as to how the language of the Act applies here.

Carl D. Buchholz, III:

–Okay.

My… my argument is not based on that… is not limited to that particular section and that particular language in that Act.

Because that particular language leaves out a number of references that are in the legislative history as to what was intended.

And I don’t think the Act includes them all.

But it’s implicit.

Antonin Scalia:

Well, maybe… maybe your argument shouldn’t be relying on that sentence at all, because what… what Justice Kennedy is just suggesting is also… was… we also explicitly said that in Edmonds, didn’t we?

Edmonds says that the second sentence of the paragraph, the sentence at issue here, is expressly addressed to the different and less-familiar arrangement, where the injured longshoreman loading or unloading the ship is employed by the vessel itself, not by a separate stevedoring company… in short, to the situation where the ship is its own stevedore.

Which is not the situation here, is it?

Carl D. Buchholz, III:

Absolutely.

Antonin Scalia:

So, according to Edmonds, that sentence doesn’t apply at all… zero.

Carl D. Buchholz, III:

Although it was read during your direct questioning… it could be read–

Antonin Scalia:

Well, I’m trying to find the weak parts in his case and the weak parts in your case.

Carl D. Buchholz, III:

–Right.

Antonin Scalia:

And it seems to me that the weak part in your case is Edmonds.

Carl D. Buchholz, III:

I will address that in a minute.

I think Edmonds is actually a strong point for our case, because it shows what will happen in the event–

Antonin Scalia:

Well, what do you do about that sentence in Edmonds which… which simply says that this sentence has no provision here… it has no application here?

Carl D. Buchholz, III:

–The… the Edmonds situation does not impose a duty on the shipowner… the legislative history behind the entire 1972 amendments was to relieve the shipowner of any liability for the negligence of another party.

And despite there… there has been some changes to what that duty might be from the Petitioner today, that’s the duty they seek to impose… that we… they seek to hold the shipowner liable for the negligence of the stevedore… in this particular case, the negligence of the loading stevedore.

Now, in the Edmonds situation–

Ruth Bader Ginsburg:

Mr. Buchholz, I can see what you’re saying if we were dealing with the typical triad… that is, this certainly meant to exonerate the shipowner from liability to the employer of the longshore worker.

So, the things that stem from Ryan and the… the usual dance of suing the shipowner, the shipowner turning and making a claim over against the stevedoring company.

That’s not what’s involved here.

Why does it follow that because Congress certainly meant to do that and did that, that there would be no liability where the injured worker is not employed by the… where we have an unloading longshore worker, and he is injured because of the… of negligence attributed to the loading stevedore?

Carl D. Buchholz, III:

–There are two answers to that, Your Honor.

One is there is no basis to, as a matter of law or a matter of fact… essentially, you get into a distinction between perhaps a foreign-loading stevedore and a domestic stevedore, who is covered under this Act.

And there is no distinction to create separate duties on what the shipowner’s duty is vis-a-vis the cargo, as to whether it’s a foreign stevedore that’s loading it or a domestic stevedore.

The other situation… and it’s where Scindia comes into play… is–

Ruth Bader Ginsburg:

But even a domestic loading stevedore is not going to be the one that compensates the longshore worker.

As I understand it, the longshore worker is going to be… the worker’s compensation scheme would enable him to make a claim against his employer’s carrier.

Carl D. Buchholz, III:

–Right.

But if you get a domestic stevedore who loads this cargo, and then the longshoreman is injured down in Houston.

Under… under plaintiff’s theory of liability, we can be liable down in Houston for the accident to the longshoreman in Houston because of what the stevedore up in Philadelphia did.

Under the Scindia holding, we had no duty to supervise the loading operation of the Philadelphia stevedore up in Philadelphia.

But suddenly, now that we’re down in Houston, we’re subject to liability.

So, if–

Ruth Bader Ginsburg:

With respect to anybody… let’s take… make it a seaman instead of a longshore worker.

This… let’s suppose that this plastic had been slipped on by a crew member.

There would be no liability on the vessel’s part?

Carl D. Buchholz, III:

–No; there would… there would probably be liability on the vessel’s part.

The vessel owes a duty of… it’s the doctrine of seaworthiness… to seamen and crew members.

That was the doctrine that was taken away by the 1972 amendments… the Supreme Court, in a case called Sieracki, extended that–

Ruth Bader Ginsburg:

Are you saying it would only be on seaworthiness, not negligence, to allow the plastic to be used in places where sea… crew members might be walking or jumping on?

Carl D. Buchholz, III:

–I… I would… there could be a case in which, if the shipowner knew about it or had constructive knowledge of it, you might be able to make out a case of negligence.

In most… in most cases, a seaman would just use the doctrine of seaworthiness because it’s an unseaworthy condition.

Antonin Scalia:

So, your basic claim here is that there is… there is simply no negligence on your part; is that it?

Because there was no duty to… to supervise the… the unloading and… but you would acknowledge liability if you knew of the defective condition and failed to warn?

Or you… you’d at least acknowledge possible liability?

Carl D. Buchholz, III:

You… you… because of the Scindia case and the lack of any obligation to supervise the work of the loading or discharging stevedore, you–

Antonin Scalia:

You’re not charged with knowledge of the defect?

Carl D. Buchholz, III:

–Right, right.

Antonin Scalia:

However, if you happen to have knowledge of the defect, you would acknowledge that… that you might be negligent in failing to pass that on?

Carl D. Buchholz, III:

My proposed duty would… would be, if you had actual knowledge of a hidden defect that you knew or had to reason to know would present an unreasonable risk of harm to experienced longshoremen.

Antonin Scalia:

Right.

Carl D. Buchholz, III:

In that limited situation, you would have a duty vis-a-vis the longshoremen in the next port.

Sandra Day O’Connor:

So–

–Well, isn’t that the allegation here exactly?

Carl D. Buchholz, III:

No.

The… the allegation here is that there was no actual knowledge; there was no… no duty to–

Sandra Day O’Connor:

Well, I… I thought I heard the argument and I thought I read in the brief that the shipowner’s employees actually provided the plastic and required that something be put under the cocoa beans, gave them the plastic to put under it, knew that the plastic was under it, and subsequently, when it was loaded, it was not obvious.

I mean, I… I understood that to be their theory.

Carl D. Buchholz, III:

–That may be their theory, Justice O’Connor… if that was the record, there would be liability in this case.

But that was not the record.

The record was that the ship supplied all material… the wood, the paper, plastic that’s used for a number of purposes.

The ship would… the testimony was the ship would not have permitted the plastic to be laid down because of possible condensation damage to the beans.

And the captain said, if I saw it, I would have had it removed.

The crew members were under instructions to notify me if it was down there.

So, that was the… the shortcoming of the case that there was no actual knowledge.

If there had been actual knowledge, the plastic wouldn’t have been down there.

William H. Rehnquist:

Well, but this… this was a case that was decided on summary judgment, was it not?

Carl D. Buchholz, III:

Yes, Your Honor.

William H. Rehnquist:

Before any trial?

Carl D. Buchholz, III:

Before any trial.

William H. Rehnquist:

Well, in… so, the District Court had to say that there… this… this point was absolutely undisputed that no reasonable person could conclude there was actual knowledge on the part of the vessel?

Carl D. Buchholz, III:

Yes… which he did.

William H. Rehnquist:

And… and you support that here.

You say that that’s… that’s not arguable even?

Carl D. Buchholz, III:

Right.

There was no evidence to suggest to the contrary, and all the evidence… the evidence all suggested to the contrary… that the ship would not have permitted it to have sailed with plastic under it if it had known about it.

Antonin Scalia:

Well, it’s down to a very narrow case.

Carl D. Buchholz, III:

Plastic is used for a number of purposes on the ship.

And it… it was potentially damaging to the ship’s cargo to have allowed it there.

The other shortcoming in the standard that we… that I was discussing with Justice Scalia is that the ship had absolutely… there was no evidence that the ship knew or should have known a piece of plastic on that floor of the hatch was going to present an unreasonable risk of harm to an experienced longshoremen.

The potential danger… the only potential danger that was established in the record was that it might cause some condensation damage to the beans.

But you wouldn’t–

Ruth Bader Ginsburg:

Do you know why it was a summary judgment situation?

I mean, if the allegation was that… as Justice O’Connor said… the ship in fact had supplied the plastic, and there were people on the deck who were watching something going on, why isn’t this a question of testimony and credibility to find out exactly what was supplied, exactly what was observed?

Carl D. Buchholz, III:

–That was, Your Honor.

And the only evidence that was… was available was… was that no one saw it.

The Petitioner in this case presented no evidence that anyone actually saw it, took no depositions to establish that, and the record was closed at the time the summary judgment was granted.

There was nothing more than the fact that there were some crew members up on deck who had a general duty of watching for smugglers, for stowaways, whatever.

And the Third Circuit, in Derr, quite correctly said you cannot catapult that type of presence to putting a duty on them to have–

John Paul Stevens:

May I ask this question, Mr. Buchholz?

Am I correct in understanding that he has really two alternate theories of recovery?

One is that as a matter of fact… and that’s what you’ve been debating now… there was actual knowledge and therefore you were negligent.

But that’s not really much of a legal issue; that’s purely factual.

And the other alternative theory, as I understand it, is regardless of what they did or did not know or anything else, they had a duty to supervise or inspect the loading operation.

And they… you… you can admit that you failed to see things there, but if you didn’t have any duty you wouldn’t have been doing it negligently.

So, the legal issue is… am I not correct… I mean, is it just whether you had that duty at that time?

Carl D. Buchholz, III:

–Well, again, the legal duty, as Justice Kennedy referred to throughout, the difference between the Ninth and the Fifth in the Circuit is whether there is a legal duty to do inspections or supervisions of the cargo stow during the loading by the stevedore.

John Paul Stevens:

And if there is such a duty, the fact that you don’t know about it, you would lose under this?

But–

Carl D. Buchholz, III:

That’s correct.

John Paul Stevens:

–So… so, there is no factual issue on that… on that legal question?

Carl D. Buchholz, III:

The question and what the Circuit Court–

John Paul Stevens:

And what this boils down to also is that your real defense is, you’re not negligent, period?

You don’t rely on the fact that the loading stevedore was negligent?

I mean–

Carl D. Buchholz, III:

–Well, somebody… if there was negligence–

John Paul Stevens:

–What I’m saying is that, going back to that argument… the debate between… or your opponent’s colloquy with Justice Scalia earlier… the fact that the… the loading stevedore was negligent would not exonerate you if you were also negligent?

Carl D. Buchholz, III:

–That’s correct.

John Paul Stevens:

Yes.

But you say you were not negligent because (a) you had no duty to inspect or supervise the loading operation and (b) as a matter of fact, your people didn’t realize that this plastic stuff was there?

Carl D. Buchholz, III:

Exactly.

Antonin Scalia:

Okay.

And why do you assert you had no duty to supervise… or… the unloading… the loading and unloading, I guess?

Carl D. Buchholz, III:

That is a duty that has… that the genesis is the Ninth Circuit’s case in Turner.

Turner felt… was faced with a situation in which an injured longshoreman was hurt.

The Ninth Circuit took a look at the situation and realized that the negligence had been that of a foreign stevedore, and decided that the longshoreman didn’t have anyone to sue.

So, they turned around and said, well, we’re going to create a… a liability on the shipowner to have had supervised the loading of the foreign stevedore to prevent any defects in the stow.

And, again, that doesn’t reconcile with your holding Scindia that you don’t have a duty to supervise the minute details of the loading operation.

And the fact of the matter is, if you put any duty other than the duty I discussed with Justice Scalia, where you have actual knowledge of a dangerous hazard which you knew or should have known would create an unreasonable risk of harm, if you put any duty of reasonable inspection it will essentially open up every one of these cases to a third-party lawsuit.

Any stevedoring expert can come in after an accident and say, a reasonable inspection would have disclosed this.

So, essentially, you’re… you’re getting… the two purposes of Congress in passing the ’72 amendments was to eliminate the personal injury litigation that was flooding the Federal courts, arising out of these kind of accidents, put them into a very improved compensation system, and also to encourage the safety of the longshoremen.

I would just like to touch on the Edmonds case for a second, because that… that–

Sandra Day O’Connor:

Well, could… could I ask you about this?

You refer to the notion that you accept that the shipowner has a duty to warn of hazards that the shipowner knows of or should have known of?

Carl D. Buchholz, III:

–No, no.

Sandra Day O’Connor:

That was what I thought you said.

Carl D. Buchholz, III:

If… if I said that, I misstated it.

With regard to the cargo… and if I can just back–

Sandra Day O’Connor:

That… that’s kind of a general principle anyway–

Carl D. Buchholz, III:

–Right.

Sandra Day O’Connor:

–Of property ownership, I suppose?

Carl D. Buchholz, III:

That’s the duty the vessel owes–

Sandra Day O’Connor:

A duty to warn of known hazards or things you should have known of?

Carl D. Buchholz, III:

–That’s the vessel that… that this Court imposed in Scindia and the… of knowledge or should have known relates to the vessel and its… its equipment, its appurtenances, its gears, things that are permanently attach… attached to it and affixed to it.

The ship does have that duty.

With regard to cargo, which is a completely transitory condition, employees of an independent contractor put it on, employees of another independent contractor take it off.

The–

Antonin Scalia:

You’re just saying they shouldn’t have known, that’s all.

Carl D. Buchholz, III:

–It requires actual knowledge.

Antonin Scalia:

I think you’re agreeing with Justice O’Connor.

I think you’re just saying they… they did not know and should not have known with respect to the cargo.

Because they had no obligation to supervise the loading of the cargo.

Carl D. Buchholz, III:

Right.

And I’m sorry, Justice O’Connor.

They… it would… under my interpretation, it would require actual knowledge, just because, as Justice Scalia said, you don’t have a duty to inspect.

John Paul Stevens:

Well, is… well, is that really… isn’t there an intermediate position that if they should have known for reasons other than supervising the… the loading… in other words, supposing they turned the loading operation entirely over… the ship entirely over to the loading stevedore at the time of the loading… they had no personnel on the boat.

They didn’t know a darn thing about what went on during the loading.

But while they’re at sea, they should have noticed something that was rather apparent from the way the cargo was shifting or something.

They would then have had a duty to warn, wouldn’t they?

They find out about the danger after the loading operation is completed and for nothing to do with it, they don’t have any duty to supervise, but they do… they… there… there is a condition they reasonably should have realized was dangerous.

Wouldn’t it be negligent not warning then?

Carl D. Buchholz, III:

Again, if you have the elements of actual knowledge of a–

John Paul Stevens:

No, it’s not… it’s… it’s… it should have… they should have known about it.

That’s the point.

Carl D. Buchholz, III:

–Okay.

That–

John Paul Stevens:

It’s quite apparent that you can’t prove anybody actually saw it, but do you find that 19 people walked by this place every day and you can’t believe they didn’t look at it… but you can’t prove they actually saw it.

Carl D. Buchholz, III:

–My answer to that, Your Honor, is no.

There’s no duty because the stevedore that’s going to discharge that cargo upon arrival is in as good, if not better a position, to take a look and see what the condition of that cargo is as some nonexpert shipowner.

So, the condition that the shipowner… that’s observable to the shipowner at that point in time is equally observable to the discharging stevedore.

And creating any… creating any type of general duty is going to throw… throw the courts back into the pre-1972 amendments, where every–

Antonin Scalia:

Well, it wasn’t in this case.

Because there’s no way in the world… if you ignore the… the loading itself, there’s no way in the world that the shipowner… the vessel owner could have known that the plastic was… was at the bottom of the load.

I mean, you’d win this case on my hypothesis, assuming the others.

Carl D. Buchholz, III:

–That… on your hypothesis.

But… but ships in transit, throughout transit, are going to encounter cargo that shifts.

And in every one of those cases… and that’s… that’s where you… the Fifth Circuit runs into problems, the Ninth Circuit, in Riggs… they have shifting… it’s open and obvious when they come into port.

Carl D. Buchholz, III:

The longshoremen are all aware of it.

And that’s why they’re hired to take it out.

And yet, the Ninth Circuit and the Fifth Circuits are imposing liability on the… on the shipowners.

John Paul Stevens:

Well, it seems to me there could be cases in which the shipowner would be aware of… of dangerous conditions that wouldn’t… that they would notice while the… the ship was at sea that the unloading steve… stevedore might not know about unless he were warned.

You don’t think that ever could happen?

Carl D. Buchholz, III:

I… I… I think you’re getting very… very close to the actual knowledge situation in that scenario.

John Paul Stevens:

Yes.

Well, that’s what I’m… but why shouldn’t the… why shouldn’t it be negligence if… if it was sufficiently obvious that any competent vessel captain would have spotted it?

I–

Carl D. Buchholz, III:

The reason for that is any so-called expert is going to be able to come in after the accident and say, a reasonably competent shipowner or master should have… and that’s enough to get to the jury.

And we get back to the Edmonds case in which a 1 percent negligent shipowner… if you impose any duty on the shipowner for the condition of the cargo loaded by someone else, the 1 percent negligent shipowner gets stuck for 99 percent… gets stuck for the entire verdict, where the discharging stevedore, who sees the same condition, gets off scot free… not only gets off scot free, but gets back his entire compensation lien that he’s paid to the injured longshoreman.

And that was a concern of Chief Justice Rehnquist–

Antonin Scalia:

–Well, of course, that’s still true in an actual knowledge case.

Carl D. Buchholz, III:

–Excuse me?

Antonin Scalia:

That’s still true in an actual knowledge case.

Carl D. Buchholz, III:

In an actual case, there’s a basis to impose liability on the shipowner for that situation.

Sandra Day O’Connor:

Is it possible that a condition could be open and obvious at the time that the owner starts the voyage, after the cargo has been loaded, but during the course of the… the trip, the cargo shifts around so that on arrival it is not open and obvious and, yet, the owner would have been aware because it was open and obvious?

Carl D. Buchholz, III:

In that situation, again, you… you have actual knowledge of a… of a… a… if you have actual knowledge, which–

Sandra Day O’Connor:

No, I didn’t say that there was, but just that it was an open and obvious condition initially, and it changed later.

Carl D. Buchholz, III:

–Well, if… if it’s an open and obvious condition… if the shipowner does not have actual knowledge of it, no, there is… there is no such duty.

Because, again, then you’ll get into a factual question in every one of these cases as to what the shipowner should have seen at the time of loading.

Antonin Scalia:

Mr. Buchholz, I’m… you know, I’m really not sure that your… your… your alarmist prediction of what’s going to happen is… is true to life.

If… if, indeed, the shipowner should have known, there will always be available the argument that he did know.

And so, you’ll have the same parade of… of these suspect expert witnesses that you’re worried about.

The… the only question we’re arguing about is whether these suspect expert witnesses are going to say, yes, he must have known, and therefore he knew, or whether they’re just going to say, well, he should have known.

Is that… is that that big a deal?

I mean–

Carl D. Buchholz, III:

Yes, Your Honor.

I… I think you don’t get to court as you see in this case unless you prove actual knowledge… unless you can prove there were long… crew members–

Antonin Scalia:

–As we’ve established in Justice Stevens’ question, you’re going to win this case under either approach.

Carl D. Buchholz, III:

–Right.

Antonin Scalia:

Whether you’re liable for should have known or not.

But you’re worried about other cases.

And you say, well, gee, if… if you make “should have known” enough for liability, we’re going to have this parade of suspect expert witnesses.

But you’re going to have them with… with… with new as well.

Carl D. Buchholz, III:

I don’t think there’s… there has been a very limited number of cases in the Third Circuit where this duty has been imposed for… for exactly that reason… that the standard under the Derr case is admittedly extremely limited.

Antonin Scalia:

If you should have known, it’s probable that you knew.

And so it becomes a jury question, doesn’t it?

Carl D. Buchholz, III:

As to… on which duty is… should have known is Your Honor referring to?

Antonin Scalia:

Well, the typical case is… is the one that Justice Stevens gave… gave of the cargo shiftings.

You know, any idiot would have… should have known that the cargo had shifted, and therefore he should have warned.

So, you say, oh, no, well, should have known is no good; you have to show that he knew.

So, these experts would say, okay, I’ll show that he knew.

He must have known, because any idiot would… would have noticed it.

That’s not a subject of expert testimony, whether someone knew or not.

No, but… but the point he’s making is if you have this theory, you… you would… you would open the case so that experts could be… could be brought in.

I don’t see the difference between should have known and… and actually knew.

I don’t see that making a difference in the volume of litigation.

Carl D. Buchholz, III:

Having tried cases since 1970 and seen what changes the Derr situation made in the Third Circuit, I… I have to respectfully differ with you.

It made a considerable difference.

Because, as Chief Justice Rehnquist pointed out, actual knowledge is far different than should have, or would have, or could have, that an expert may be able to testify.

The courts just don’t permit… they take a very close scrutiny as to what actual testimony… what actual knowledge is in the record, if there is any.

And if it’s not there, there… there is no cause of action.

Anthony M. Kennedy:

Is there… are there occasions when onloading and offloading proceeds at the same time?

You’re taking something out of the hold and… and putting it in at the same… and putting another cargo in at the same time.

Carl D. Buchholz, III:

Yes.

It’s not necessarily the same… the same ship at the same port… you may be loading one hatch, taking it out at another hatch.

Usually, it’s not in the… vis-a-vis the same hatch, it’s not going on at the same time.

They’ll usually wait till you finish taking out the cargo, then they’ll put new cargo in.

Anthony M. Kennedy:

Using the same stevedore?

Carl D. Buchholz, III:

Yes.

Yes, Your Honor.

Unless there is any additional questions, I have nothing further, but would request this Court to affirm the decision of the Third Circuit and the lower court in the Howlett case.

William H. Rehnquist:

Thank you, Mr. Buchholz.

Mr. Sovel, you have three minutes remaining.

Charles Sovel:

If the Court please:

First of all, one of the problems in the record in this case is that the District Court judge did resolve issues of… where there really are factual issues.

Because there is a factual issue here as to knowledge of the shipowner and the captain of this condition.

Because we presented the testimony that the ship supplied it; that the… required something to be placed under it.

That alone is sufficient to at least raise a factual issue to be determined by a factfinder as to whether they would have actual knowledge of its presence.

It’s an inference to be drawn from those facts alone.

Antonin Scalia:

Well, I thought there was also testimony that plastic is used for a lot of things?

Charles Sovel:

Well, first of all, there was no testimony of that.

There was none.

And that’s a very important point.

That was an argument by Mr. Buchholz that, well, it could have been used for other things.

The only other evidence in this record as to another use of the plastic was to the… in connection with the loading of corrosive drums… drums containing corrosive materials.

And there was testimony that the only cargo… other cargo loaded in this port was bananas, which are not corrosive.

Now, this argument that it could have been used for some other purposes… let them bring in the witnesses; let them be cross-examined as to whether any of these purposes are reasonable purposes.

There was never an iota of evidence in this record, other than counsel’s argument, as to that being a permissible purpose.

Now, under Mr. Buchholz’s argument, and the real problem that you’re having… I think Your Honor has touched on it… as Mr. Buchholz says, if I… even though you question my captain and my chief mate, and he says, we did this, we observed the cargo, and if he says, I didn’t see it, then I can’t establish a case.

Because unless he admits to seeing it, then there’s no evidence of that–

William H. Rehnquist:

Well, no, but no one could seriously contend that.

A jury would be entitled to say, even though he doesn’t admit to seeing it, we infer from other evidence that he did see it.

Charles Sovel:

–If there is other evidence to support it, and–

William H. Rehnquist:

And if there isn’t, then the jury shouldn’t infer it.

Charles Sovel:

–That’s right.

But in… in this case, there was evidence on which they could find that.

But under Mr. Buchholz’s test, if he brings in somebody to say, on a motion for summary judgment… that he produces a deposition of a captain who says, I didn’t see it, the plaintiff is out of court.

And I don’t think that’s anywhere in the law of negligence that you can’t have a reason to know.

Charles Sovel:

Now, I would want to address one issue because when Justice Scalia questioned me on the language of the statute, it sort of caught me short and I want to go back to that.

The statutory language which you quoted reads: If such person… now, person there refers to injured longshoremen, because it’s in the second sentence of the Act… and by the way, this appears on page three of my initial brief, the blue brief… it says: If such person was employed by the vessel.

The injured person is not employed by the vessel.

The injured person is employed by the stevedore.

I’m satisfied on that, counsel.

I think you’re right.

Charles Sovel:

Okay.

To provide stevedoring services.

What this language was directed to was for a situation where the shipowner also acts as the stevedore.

And it has no relevance in this situation.

William H. Rehnquist:

Thank you, Mr. Sovel.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.