Opposition Brief — Indiana Civil Rights Commission v. American Commercial Barge Line Co.

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A 4 | josePH F. SPANIOL, Ie

No. 88-1841 a

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In The

Supreme Court of the United States

October Term, 1989

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INDIANA CIVIL RIGHTS COMMISSION

and DONNA MARIE WITTE

Petitioners

vs.

AMERICAN COMMERCIAL BARGE

LINE COMPANY

Respondents

A.

4

PETITION FOR A WRIT OF CERTIORARI

TO THE INDIANA COURT OF APPEALS

La.

_

BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

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ROBERT W. KILROY

Attorney at Law

110 Hampstead Village

Hampstead, N.C. 28443

(919) 270-9515

Attorney for Respondent

American Commercial Barge

Line Company

QUESTIONS PRESENTED

Does the Admiralty and Maritime jurisdiction of the United States

preempt and exclude the State of Indiana from enforcing its statut-

ory prohibitions against ernployment handicap discrimination upon

the navigable waters of the United States?

Does the federal judicially fashioned doctrine of seaworthiness

constitute “business necessity” under Indiana statutes to exclude

physically handicapped persons from employment as seamen

aboard vessels upon the navigable waters?

May a maritime employer, operating vessels upon the navigable

waters of the United States, maintain and apply minimum physical

standards for seamen to provide a seaworthy vessel and seaworthy

crew?

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page

Alaska $.S. Co. v. Peterson 347 U.S. 396 (1954) ..... 14

Atlantic Transport Co. v. Imbravek 234 U.S. 52 (1914) .. 11

Boudoin v. Lykkes Brothers Steamship Co., Inc.

RI gg we tt tt ee 14,15,16

Cooper v. Reynolds 77 U.S. 309 (1870) .......... 7

Crowell v. Benson 285 U.S. 22 (1956) ........... 9

Crumady v. Joachim Hendrick Fisser

RE tt tt tt tl 14,15

Garrett v. Moore-McCormack Co., Inc.

Ee 13

Gibbons v. Ogden 9 Wheat 1 (1803) ............ 8

Just v. Chambers 302 U.S. 383 (1941) ........... 9

Kelly v. State of Washington, ex rel Foss Co., Inc.

Sg kk tk tt ke 8

Knickerbocker Ice Co. v. Stewart

ES 10,11,18,19

Mahnich v. Southern S.S. Co. 321 U.S. 96 (1944) ... 13,15

Martin v. Hunter’s Lessee 14 U.S. 304 (1816) ....... 8

Minnesota Rate Cases 230 U.S. 352 (1913) ......... 8

Mitchell v. Trawler Racer, Inc. 362 U.S. 539 (1960) ... 14

Oil, Chemical, Atomic Workers International Union v. Mobil

a MP CEG) gw ww kk tt 17,18

Robertson v. Baldwin 165 U.S. 275 (1897) ........ 13

Romero v. International Terminal Operation Co.

EE 9

iV

Seas Shipping Co. v. Sieracki 328 U.S. 85 (1946) ..... 13

Southern Pacific Company v. Jensen

ee es a ra 10,11, 18,19

The Lattowana 88 U.S. 558 (1875) ............. 9

The Osceola 189 U.S. 158 (1903) ............. 12

The Resolute 168 U.S. 437 (1987) ............. 7

Union Fish Co. v. Erikson 248 U.S. 308 (1948) ....... 9

Waldron v. Moore-McCormack Lines, Inc.

ge eee ee 14,15

Waring v. Clarke 48 U.S. 441 (1847) ............ a

STATUTORY PROVISIONS

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U.S. Constitution Article ISection8 .......... 9,10

Pe a er 10

STATEMENT OF THE CASE

American Commercial Barge Line Company (ACBL) operates

a fleet of more than fifty towboats and over 1600 barges upon the

inland rivers and the Gulf of Mexico. The towboats vary in size

from the smaller 800 horsepower tugs measuring 75 feet long and

25 feet wide with a crew of four to the largest 8400 horsepower

towboats measuring 185 feet long by 52 feet wide with a crew of

twelve. While the smaller tugs are used primarily in the fleeting

areas where barges are stored, the larger towboats operate on

the Lower Mississippi River where there are no locks and dams

and there are no restrictions on the size of the tow. The majority

of the vessels operate on the so-called locking rivers. These rivers,

such as the Ohio and Illinois, have a series of dams built upon

them for flood control with adjacent locks to facilitate navigation.

The typical locking river tow consists of fifteen barges, five long

and three wide. The typical barge measures 195 feet long by 35

feet wide. Barges are either open hopper for bulk commodities

such as coal or scrap, covered hopper barges for grain, and tank

barges for carrying liquids.

The typical towboat has a crew of ten consisting of the Master/

Captain, Pilot, Chief Engineer, Cook and six Deckhands. The

routine of the vessel is split into two six-hour watches called the

forward-watch and the after-watch. Each crew member stands

two watches in a twenty-four hour period.

Normal duties on watch include checking all barges for water

leaks and water levels in the void areas between the cargo box

and hull of the barge. If needed, these areas will be pumped,

rigging between barges checked and tightened, maintenance and

general housekeeping performed on the boat. The Pilot and his

assigned Deckhands will perform similar duties on the after-watch.

Engineers as a general rule work the Captain’s watch in the

engine room. They are responsible for the vessel’s machinery from

its main propulsion engines, generators, etc., to deck winches.

Additionally, the Engineer is responsible for fueling the vessel from

vessels brought along side while continuing underway in the river.

l

Cooks generally work in the galley from 5:00 a.m. to 7:00 p.m.

preparing and serving three meals a day for a one-hour period

beginning at 5:30 a.m., 11:30 a.m. and 5:30 p.m. The Cook is

also responsible for ordering groceries from boat stores at various

points on the rivers. The groceries are delivered along with the

fuel. The Cook and Engineer are responsible for the transfer of

fuel and groceries. The vessels continue to move during the course

of transfer. While the Engineer is responsible for the rigging and

connection of fuel lines, the Cook must board the delivery vessel

back and forth to the galley until all groceries have been transferred.

Other employees may be added to the above employees such

as Trainee Engineers and Steermen who are learning to become

river pilots.

River boats do not call at ports or remain too long in any one

area. Crew changes are made at fleeting areas by tugs picking up

and dropping off crew members. They are also made at customer’s

facilities such as grain elevators. They are commonly made at locks

on the locking rivers where crew members must ascend and de-

scent ladders in the lock wall to gain access to the tow. Crew

changes are also made at landing points on the river where skiffs

are brought to the bank. Additionally, crew changes are made by

bringing the head of the tow or stern of the vessel as close as

possible to the bank and having the crew members use a ladder

(sometimes horizontal) for access. A crew member will carry his/

her baggage in this process.

The tow itself presents a number of inherent dangers to the

crew such as carrying wires, lines, ratchets, pumps, groceries or

baggage. The walking surface presents a number of obstacles to

casual strolling such as wires, ratchets, open man-holes, cargo,

snow and ice. The typical twelve-foot deep barge is loaded to a

nine-foot depth while empty barges usually ride at a depth of one

and one-half feet. Where emptys and loads are in tandem, crew

members must climb up and jump down seven or eight feet from

barge to barge while transversing the tow. This maneuver requires

not only alertness and balance, but good eye sight and depth per-

3

ception. The “head of the tow” on a typical five by three barge

locking river tow is 1,000 feet from the boat. On Lower Mississippi

River boats, this may be as much as 1,600 feet.

The current of the river is the most important element to be

considered in the navigation of the vessel and the tow. At times,

even the best and most experienced Captains and Pilots encounter

unexpected changes in river conditions causing loss of control of

the tow. High water and swift currents will take a tow into the

bank. Low water will break a tow from grounding. When a tow

breaks, rigging (1% inch steel cable), ratchets and barge hardware

come apart. The current now takes control of the individual barges

or units of barges creating additional dangers of collision, sinking

and grounding. Into this situation, the entire crew must respond.

The Captain sounds the general alarm and checks to see that all

crew members are accounted for and all crew members are as-

signed tasks in the pursuit of the runaway barges. These are

common occurrences which can traverse many miles of nver and

hours of time. A number of other hazards exist for members of a

river boat crew.

Sinkings are a common occurrence when barges and vessels

strike submerged objects such as a sunken barge whose marker

buoy has been lost. A sinking barge or barges filling with water

breaks its rigging within the tow causing the tow to break-up.

Towboats have been sunk by submerged objects in less than three

minutes when their hulls have been torn open. In one such incident,

a Cook was lost by drowning.

Drownings are a daily hazard of life on the tow and vessel. The

most common drowning occurs off the sides of the tow and boat

when employees, through loss of balance or carelessness, fall over

board beneath the tow or boat. Duck ponds, that open area formed

by the four round corners of barges wired together, present a

hazard at night and to those with poor vision at all times. There

is no escape from a duck pond. The current draws the individual

under the tow.

Fires on vessels occur most commonly from clutch fires. Engines

at full capacity turn at more than 900 rpm. When ice, trees and

other debris foul the vessel’s propellors and the engines continue

to turn at such high speeds, friction at the clutch causes explosion

and fire. Fires must be fought by all crew members and when it

can not be contained, the crew must abandon the vessel and take

refuge on the tow. Liquid cargo in tank barges or coal cargo can

also cause fires on the tow requiring the crew, the entire crew,

to respond with pumps and hoses. Adverse conditions such as ice,

snow and fog delays any help the vessel may receive from other

vessels.

Loss of power from the vessel’s engines and generators causes

loss of electric, pneumatic and hydraulic control of engines and

steering. This commonly occurs after refueling when water is

present in the new fuel.

Weather conditions such as fog, ice, snow, rain, and freezing

rain increase the hazards of working on the tow and boat, of

transfers between the tow, boat and other vessels.

Witte applied for employment as a Cook with the Company on

November 12, 1982. After being interviewed and found to have

the skills required to function as a Cook, Witte was examined by

a Company physician. By letter dated March 8, 1983, Witte was

informed she would not be employed aboard Company vesseis

because she did not possess the minimum vision requirements.

At that time, uniform company policy required that all applicants

for employment aboard Company vessels possess minimum vision

requirements of 20/100 in one eye and 20/70 in the other eye.

Upon examination, Witte was found to have no vision in her night

eye due to congenital cataract.

Witte has acquired depth perception, that is, she can judge

distances and depth from the size of known cues such as the width

of a road or the size of a known object around her. Witte has

worked as a cook in restaurants and children’s camps. Additionally,

she possesses an Associates Degree in food administration. She

has also tended bar and engages in sports such as volleyball and

softball. Witte also drives an automobile without any license

restriction.

Beginning in 1979, the Company developed physical standards

for applicants for vessel positions. These standards as developed

by the American Waterway Operators, the National River

Academy, and the United States Coast Guard standards. While

there are no USCG licensing requirements for Deckhands and

Cooks employed on Company vessels, the aforementioned stan-

dards apply to endorsements, licenses and certificates issued by

the USCG to Deckhands, Cooks, etc., who wish to be certified

as Tankermen, Engineers, and vessel Operators. A Deckhand or

Engineer may not engage in the loading or unloading of liquid

cargoes without a Tankerman’s Certificate issued by the USCG

after testing and physical examination.

These minimum standards developed by the Company were

based on experiences and expertise in the area of marine safety

as they apply to the Company’s working environment and the worst

possible situation. The standards on lifting and the back recognize

the physical burdens of the occupation carrying heavy loads over

uneven surfaces. The eye standard recognizes the hazards of the

environment of getting off/on vessels in all weather at all locations,

tripping and falling hazards, as well as responding to emergencies

where the most eyesight is available such as man overboard or

throwing a life-ring.

Since 1979, these standards have reduced the number of em-

ployee injuries while the number of employees, mandays, and

number of vessels has increased. For the year 1979, there were

258 personal injuries in the fleet. For the year 1985, these were

reduced to 166. After positive drug screens and poor back x-rays,

poor eyesight is the third most common reason for applicant rejec-

tion. Since 1979, 28 other applicants have been rejected for eyes,

including nine for having sight in only one eye.

sa

v—

SUMMARY OF ARGUMENT

American Commercial Barge Line Company contends that this

Court has, from its beginning, aggressively protected the exclusive

admiralty and maritime jurisdiction of the United States to exercise

their authority upon the navigable waters. The Court has recog-

nized that while some State interests compel or allow regulation

in areas of federal jurisdiction and that it may impact upon interstate

commerce, only the most narrow exceptions have been allowed

to impact upon maritime matters.

To allow the State of Indiana, through its Civil Rights Commis-

sion, to define and equivocate what constitutes a seaworthy person

would disrupt and confuse the guidance and law enunciated by this

Court as to what constitutes a seaworthy vessel and seaworthy

crew.

While the State of Indiana may border and touch upon the navig-

able waters such as Lake Michigan and the Ohio River, its contacts

with things maritime are remote. Its General Assembly has de-

clared as a matter of public policy that handicap employmen: dis-

crimination is unlawful. But this policy and authority does not extend

beyond state borders.

The decision to deny employment to Witte was made in Jeffer-

sonville, Indiana. But this fact alone does not justify extension of

state policy to an area traditionally regulated by the federal govern-

ment, Congress, and the federal Courts. This Court recognized

this when it denied to the state of Texas its right to work state

status upon navigable waters for employment decisions made in

Houston, Texas. The Court focused on the nature and situs of the

employment, not where decisions on employment were made.

The Decision and Order of the Indiana Civil Rights Commission

was overturned by Indiana trial and appellate Courts because the

Commission failed to yield to exclusive maritime jurisdiction and

regulation, and further chose to impose its own brand of seawor-

thiness upon a maritime employer.

ARGUMENT

INDIANA CODE 22-9-1-13 provides:

Sec. 13. (a) The prohibition against discrimination in

employment because of handicap does not apply to failure

of an employer to employ or to retain as an employee

any person who, because of handicap, is physically or

otherwise unable to efficiently and safely perform, at

the standards set by the employer, the duties required

in that job.

(b) After a handicapped individual is employed, the

employer shall not be required under this chapter to

promote or transfer such handicapped person to another

job or occupation, unless, prior to such transfer, such

handicapped person by training or experience is qualified

for such job or occupation.

(c) This section shall not be construed to require any

employer to modify any physical accommodations or ad-

ministrative procedures to accommodate a handicapped

person.

The purpose of this law is to enforce public policy as it applies

to the employment of handicapped persons within the State of

Indiana. It is the employer’s position that it is exempt from coverage

under the Act upon two grounds:

1. Business necessity and safety as provided by statute;

2. Prohibition of employment of handicapped persons upon ves-

sels in the admiralty and maritime jurisdiction of the United States.

A. ADMIRALTY AND MARITIME JURISDICTION

Jurisdiction is the power to adjudicate a case upon its merits and

dispose of it as justice may require. The Resolute 168 U.S. 437

(1987). The jurisdiction of any Court to deal with a subject matter

is derived from constitutional instruments and valid laws. Cooper

v. Reynolds 77 U.S. 309 (1870).

Admiralty and maritime jurisdiction is jurisdiction to adjudicate

on matters which in accordance with the Constitution and valid

8

laws in force are appropriate subjects for determination. The

character of this jurisdiction is indicated broadly by the name itself

and as such it is comprehended within the judicial power of the

United States conferred by the Constitution, Article III, Section

2, which provides:

“The judicial power shall extend . . . to all cases of

admiralty and maritime jurisdiction.”

There is not and has not been a contention between the parties

that the employer’s vessels do not operate within and upon the

admiralty and maritime jurisdiction of the United States.

The purpose of the grant of admiralty and maritime jurisdiction

to the Federal Government was to produce essential harmony and

uniformity, U.S. Constitution, Preamble, to unify the several States

in the national, international and interstate relationships and ali

other purposes were subordinate.

The several States were prohibited from making conflicting laws

on subjects of national interest. Martin v. Hunters Lessee 14 U.S.

304 (1816).

The prevailing purpose is especially evident in che constitutional

grant of judicial power where cases requiring national uniformity

have been transferred from the States to the Federal Government

and the judicial attribute of sovereignty to be exercised by such

courts as Congress should provide. Under our constitutional sys-

tem, there necessarily remains to the States until Congress acts,

a wide range of permissible exercise of power appropmiate to their

territorial jurisdiction although interstate commerce may be af-

fected. Minnesota Rate Cases 230 U.S. 352 (1913). However,

where a conflict exists, the state legislation must fall. Gibbons v.

Ogden 9 Wheat 1, (1803) Kelly v. State of Washington, ex rel

Foss Co. Inc. 302 U.S. 1, (1937).

In the exercise of their admiralty jurisdiction, the federal courts

are not bound by state statutes insofar as they make inroads on

a harmonious and uniform system. State legislation, though recog-

nized in certain aspects, consistent with the general principles and

operation of the maritime law, is not permitted to displace the

characteristic features of the maritime law or to impair the unifor-

mity designed to be established in conferring maritime jurisdiction

on the United States. Union Fish Co. v. Erikson 248 U.S. 308

(1918). Just v. Chambers 302 U.S. 383 (1941), Romero v. Inter-

national Terminal Operation Co. 358 U.S. 354 (1959).

Although no specific or express power exists in the Constitution

conferring on Congress the power to legislate substantive maritime

law and admiralty jurisdiction, certain express powers do exist

such as to define and punish “Piracies and Felonies” on the high

seas. The power “to regulate commerce” authorizes a great portion

of maritime law. Additionally, the power “to make all Laws which

shall be necessary and proper” to carry out and execute all the

powers granted to the Federal Government. U.S. Constitution,

Article I, Section 8, Crowell v. Benson 285 U.S. 22 (1956).

Congress thus has the paramount and undisputed power to fix,

determine, alter and revise the maritime law which shall prevail

throughout the United States. Waring v. Clarke 48 U.S. 441 (1847),

the Lattowanna 88 U.S. 558 (1875).

Pursuant to its powers, Congress has from the beginning regu-

lated shipping and maritime matters, 46 U.S.C. 740 which provides:

“The admiralty and maritime jurisdiction of the United

States shall extend to and include all cases of damage

or injury, to person or property, caused by a vessel on

navigable water, notwithstanding that such damage or

injury be done or consummated on land.

In any such case suit may be brought in rem or in

personam according to the principles of law and the rules

of practice obtaining in cases where the injury or damage

has been done and consummated on navigable water:. . .”

Additionally, Congress has defined the rights and remedies of

seamen and other maritime workers. Longshoremen and Harbor

Workers Compensation Act, 33 USC 901 et seq, Jones Act 46

USC 688 as well as nghts and remedies under the Federal Employ-

ers Liability Act 45 USC 50 et seq. The Longshoremen and Harbor

Workers Compensation Act was the congressional response to the

10

Supreme Court’s ruling negating the exercise of any state powers

even when authorized by Congress, over essential federal maritime

jurisdiction where this exercise of power conflicted with maritime

law. Southern Pacific Company v. Jensen 224 U.S. 225 (1917),

Knickerbocker Ice Co. v. Stewart 253 U.S. 149 (1920).

Like many states at the turn of the century, New York enacted

a workmens compensation scheme for injuries and death occurring

within the course and scope of employment.

Jensen was employed as a stevedore for Southern at its Pier

49, North River, Manhattan facilities. While engaged in unloading

a vessel belonging to Southern, which was berthed at Pier 49 and

laying upon the navigable waters of the United States, Jensen was

killed. Upon a claim filed by his survivors, the State Industrial

Commission made an award to Jensen’s survivors of weekly ben-

efits. Upon the appeal of Southern, the New York Court of Appeals

upheld the award.

Upon appeal to the United States Supreme Court, Southern

argued that the New York statutory scheme was unconstitutional

and that it conflicted with admiralty jurisdiction and imposed a

burden on interstate commerce. The Supreme Court agreed, holding:

“Plaintiff in error being an interstate common carrier by

railroad, is responsible for injuries received by employ-

ees while engaged therein under Federal Employers

Liability Act.” and “As applied here the Workmens Com-

pensation Act conflicts with the general maritime law

which constitutes an integral part of the Federal Law

under Article III, Section 2 of the Constitution and to

that extent is invalid.”

The court reasoned the judicial power of the United States

extended to all cases of admiralty and maritime jurisdiction pursuant

to the Constitution, and further, that pursuant to Article I, Section

8, Congress has all the powers necessary and proper to execute

the foregoing power. The Court found that Jensen’s employment

as a stevedore was maritime in nature, his employment was a

maritime contract, the injuries which he received were likewise

11

maritime, and that the rights and liabilities of the parties in connec-

tion therewith were matters clearly within the admiralty jurisdic-

tion, citing Atlantic Transport Co. v. Imbravek 234 U.S. 52 (1914)

which found injuries sustained by stevedores in the loading and

unloading of cargo aboard vessels to be maritime injuries.

Knickerbocker arose as a result of the Congressional response

to Jensen. In October 1917, Congress amended the judicial code

relative to jurisdiction of federal courts as established by the

Judiciary Act of 1789. Congress sought to amend the “saving to

suitors” clause to include “and to claimants the rights and remedies

under the Workmens Compensation law of any state.”

Stewart was employed as a bargeman for Knickerbocker when

he fell into the Hudson River and drowned on August 3, 1918. His

widow made a claim under the New York Workemens Compensa-

tion statute and received an award from the Industrial Commission.

On appeal by Knickerbocker of the foregoing award, the U.S.

Supreme Court reversed, concluding that the enactment was an

attempt by Congress to authorize the states to apply their respec-

tive Workmens Compensation statutes to the admiralty and

maritime jurisdiction of the United States. As so construed, the

Court stated:

“. . . we think the enactment is beyond the power of

Congress. Its power to legislate concerning rights and

liabilities within the maritime jurisdiction, and remedies

for their enforcement, arises from the Constitution as

above indicated. The definite object of the grant was to

commit direct control to the federal government, to

relieve maritime commerce from unnecessary burdens

incident to discordant legislation, and to establish, as far

as practicable, harmonious and uniform rules applicable

through every part of the Union.”

“. . . The subject was entrusted to it, to be dealth

with it according to its discretion - not for delegation to

others.”

“Obviously, if every state may freely declare the

12

rights and liabilities incident to maritime employment,

there will at once arise the confusion and uncertainty

which framers of the Constitution both foresaw and un-

dertook to prevent.”

The social policies evidenced by the several states with their

Workmens Compensation statutes were adapted by Congress with

the passage of the Jones Act and the Longshoremen and Harbor

Workers Compensation Act.

Having established the power of Congress and Federal Courts

to regulate maritime employment, what recognized prohibitions

exist to exclude handicapped persons from maritime employment.

B. THE DOCTRINE OF SEAWORTHINESS

Pursuant to the provisions of 46 USC 713:

“.. . every person having the command of any vessel

belonging to any citizen of the United States shall be

deemed to be the “master” thereof; and every person

(apprentices excluded) who shall be employed or en-

gaged to serve in any capacity on board the same shall

be deemed and taken to be a ‘seaman’; and the term

‘vessel’ shall be understood to comprehend every de-

scription of navigating on any sea or channel, lake or

river...”

Prior to the enactment of the Jones Act in 1920, the seaman

had no remedy against a shipowner beyond maintenance and cure

(maritime workmens compensation) for injuries caused by negli-

gence of the ship’s officers and crew. There was a right to indemnity

for injuries caused by the shipowner’s negligent failure to maintain

the vessel and its appliances in seaworthy condition. These rights

were summarized in The Osceola 189 U.S. 158 (1903).

“That the vessel and her owner are, both by English

and American law, liable to an indemnity for injuries

received by a seaman in consequence of the unseawor-

thiness of the ship, or a failure to supply and keep in

order the proper appliances appurtenant to the ship. . .”

For almost twenty-five years after its passage, the Jones Act

13

was the seamen’s chief vehicle for recovery for personal injuries.

The Supreme Court’s recognition in 1944 that warranty of seawor-

thiness was totally divorced from fault concepts furnished an en-

tirely new source of recovery. Mahnich v. Southern S.S. Co. 321

U.S. 96, Seas Shipping Co. v. Sieracki 328 U.S. 85 (1946).

The question of what constitutes negligence under the Jones

Act has assumed less and less importance as the scope of the

warranty of seaworthiness has expanded. Since a seaman is not

entitled to independent recoveries for negligence and seaworthiness,

and since negligence is more difficult to prove than seaworthiness

and because negligence requires a showing of actual or constructive

knowledge, the liability for unseaworthiness has expanded to un-

manageable proportions.

In Mahnich, the seaman plantiff was injured when the rope sup-

porting the staging on which he was working parted. The rope

which had been supplied by the mate had never been used and

appeared to be in sound condition. Although there was every indi-

cation that the mate had acted with due diligence in selecting the

rope, and that his choice was only fortuitously bad since other

sound rope was available, the Court found that the vessel was

unseaworthy and plaintiff entitled to indemnity for his injuries. The

shipowner’s “duty to furnish the employee with safe appliances

and a safe place to work” was held to be non-delegable and not

qualified by the fellow servant rule in the same manner that these

defenses are precluded under the Jones Act.

The fellow servant doctrine, contributory negligence, and as-

sumption of the risk are not available to employers pursuant to

the Jones Act and the Federal Employers Liability Act and prior

releases or contracts of exemption are void. 45 USC 50, 53 and

54, Robertson v. Baldwin 165 U.S. 275 (1897), Garrett v. Moore

McCormack Co. Inc. 317 U.S. 269 (1942).

Two years later, the Supreme Court decided Sieracki and reem-

phasized the absolute independence of the seaworthiness warranty

from negligence notions. In this case, a longshoreman, while en-

gaged in the unloading of a vessel, was injured when a shackle

14

broke which supported a cargo boom. Improper forging had caused

the defect which was not detectable by visual inspection. In holding

that the ship was unseaworthy, the Court observed that unseawor-

thiness is:

“essentially a species of liability without fault” and that

“the liability is neither limited by conceptions of negli-

gence nor contractual in nature” and that

“ft is a form of absolute duty owing to all within the

range of its humanitarian policy.”

The doctrine of unseaworthiness is ensuing years moved from

defective gear and appurtenances to include: defective equipment

not owned by the shipowner but brought aboard by stevedores,

Alaska S.S. Co. v. Peterson, 347 U.S. 396 (1954); a crew that

was unfit, Boudoin v. Lykkes Brothers Steamship Co. Inc. 348

U.S. 336 (1955); a vessel that was undermanned, Waldron V.

Moore-McCormack Lines Inc. 386 U.S. 724 (1967); or incompe-

tently manned, Boudoin supra; a method of work that was unsafe,

Crumady v. Joachim Hendrik Fesser 358 U.S. 423 (1959); and a

temporary condition, Mitchell v. Trawler Racer, Inc. 362 U.S. 539

(1960). Shipowners became virtual insurers of seamen’s safety.

The seaworthiness of a ship, her equipment, appurtenances and

crew is a relative concept dependent in each instance upon the

circumstances which its fitness is drawn into question.

The formulation most often quoted is that of the Supreme Court

in Mitchell:

“The owner is not obligated to furnish an accident free

ship. The duty is absolute, but it is a duty only to furnish

a vessel and appurtenances reasonably fit for their in-

tended use. The standard is not perfection but reason-

able fitness; not a ship that will weather every storm

or withstand every imaginable peril of the sea but a

vessel reasonably suited for her intended purpose.”

In Mitchell, a seaman was injured when he slipped on slime and

fish gurry which had accumulated on the ship’s rail during the

unloading process. The voyage had been completed and Mitchell

15

was leaving the ship for shore when the injury occurred. The Court

specifically held:

“Liability for a temporary unseaworthy condition is no

difference from the liability which attaches when the

condition is permanent.”

In Crumady, the piaintiff, a stevedore, was injured when a cargo

boom and tackle were rated at three tons. The winch controlling

the wire through which the boom and tackle operated had an

electrical cut-off device which was set at a 6 ton limit by the

stevedores. The Court found the vessel unseaworthy for the fact

that it supplied a winch having a safety load set far in excess of

the cargo boom and tackle. The Court held, citing Mahnich:

“as to appliances, the duty of the shipowner does not

end with supplying them; he must keep them in order.

The shipowner is not relieved of these responsibilities

by turning control of the loading and unloading of the

ship to a stevedoring company.”

Waldron involved a suit for personal injuries against the ship-

owner for injuries caused when too few men were assigned to the

task. Plaintiff and four other seamen were engaged in handling

lines while the ship was being docked. At the last minute, the third

mate who was directing the operation ordered plaintiff and another

seaman to uncoil and carry an 8 inch rope to the side of the vessel.

In the course of this assignment, he fell and was injured.

In finding that insufficient manpower assigned to a particular

task can result in unseaworthiness, the Court, citing Boudoin, saw

no reason to draw a line between incompetent or insufficient seamen:

“This analysis, we believe, is required by a clear recog-

nition of the needs of the seaman for protection from

dangerous conditions beyond his control and the role of

the unseaworthiness doctrine which, by shifting the risk

to the shipowner, provides that protection. If petitioner

had been ordered to use a defective pulley in the lifting

the rope he would clearly be protected by the doctrine

of seaworthiness. If the pulley itself were sound but

16

petitioner had been ordered to load too much rope but

two of them lacked the strength of ordinary efficient

seamen, petitioner would again be protected. Should

this protection be denied merely because the shipowner

instead of supplying petitioner with unsafe gear, insuffi-

cient gear or incompetent manual assistance, assigned

him insufficient manual assistance. We think not. . .”

Boudoin arose out of a suit by a seaman for injuries and loss of

wages as a result of an attack upon him by a fellow crew member.

The evidence showed, and the District Court found, his assailant

was drunk at the time, and in addition, had a savage disposition

as to endanger others working on the ship.

In affirming this decision, the Supreme Court stated:

“We see no reason to draw a line between the ship and

the gear on the one hand and ship’s personnel on the

other.”

Defective personnel were to be measured by the “usual and

customary standard of the calling.” The court found the District

Court justified in concluding that plaintiffs assailant:

“. . Was not equal in disposition to the ordinary men

of the calling and that the crew with Gonzales as a

member was not competent to meet the contingencies

of the voyage.”

From the foregoing, several principles of exclusive federal

maritime law apply:

1. A seaworthy vessel is a vessel that is fit for its par-

ticular purpose;

2. The shipowner has an absolute duty to provide a

seaworthy vessel to its crew;

3. The warranty of seaworthiness applies to the vessel,

its equipment, its appurtenances, and its crew;

4. Seaworthiness is a judicially fashioned doctrine applic-

able by the United States Constitution to admiralty and

maritime jurisdiction of the United States;

5. Maritime negligence, as it applies to seamen’s death

17

and injuries, is a federal policy enacted by Congress and

applies to the admiralty and maritime jurisdiction of the

United States;

6. The several States may not legislate contrary to a

uniform maritime law.

That the several states may not legislate contrary to federal

maritime law was decided in Oil, Chemical, Atomic Workers, Inter-

national Union v. Mobil Oil Co. 426 U.S. 407 (1976). This case

involved the conflict between federal and state statutes regulating

employment.

Under the National Labor Relations Act, 29 U.S.C. 151 Et.

Seq., Section 14(b) allows the individual States to enact so-called

right to work laws. Section 8 (a)(3) of the Act provides that parties

to a collective bargaining agreement may make membership in the

Union a condition of employment, and thus, the obligation to pay

Union dues and assessments. Section 14(b) allows the individual

States the option of exempting themselves by legislation from the

Union membership requirements. Texas had for many years been

a right to work State. The parties to the OCAW/Mobil Agreement

had had a collective bargaining relationship for many years, and

during that period of time, negotiated and administered several

collective bargaining agreements.

After their most recent agreement was executed, and containing

the same Union security language as had existed in prior agree-

ments, the Company announced it would no longer force the Union

security provisions requiring membership in the Union as a condi-

tion of employment.

The Union filed suit for enforcement of the agreement in Federal

Court. The Company defended on the basis that its Marine Trans-

portation Division was located in Houston, Texas, and under Texas

law, the right to work provisions of the Union security language

of the agreement were unenforceable and void. The evidence in-

dicated that all personnel records, decision, and payroll were made

in Houston. The evidence also indicated that none of the employees

in the bargaining unit worked in Texas but aboard vessels of the

18

Company upon the navigable waters. The Union argued that the

provisions of 14{b) were not applicable to the exclusive federal

maritime jurisdiction.

The Supreme Court adopted the Union’s arguments on the facts.

The Court found Mobil’s employees to be seamen who worked

exclusively upon navigable waters and thus found 14(b) inapplicable.

The same rational applies to the present case. The hiring deci-

sions and employment policies of ACBL arise in Jeffersonville,

Indiana. However, the work situs of its employees is upon the

navigable waters. This is exclusive federal jurisdiction. It is exclu-

sive in terms of situs and employee status as seamen. The appli-

cation of State employment law, contrary to maritime policy, is

prohibited. OCAW, Jensen, Knickerbocker, supra.

>

19

CONCLUSION

Petitioner’s argument faults the Indiana Court of Appeals for

relying upon the provisions of 28 U.S.C. 1331 (1) to support its

judgement in the matter. Petitioner fails to note the Indiana Court

of Appeals also relied upon the decisions of this Court in Jensen

and Knickerbocker supra to reach its conclusions.

Petitioner’s argument that the “saving to suitors” provisions of

28 U.S.C. 1331 (1) allows Indiana to exercise its statutory authority

upon the navigable waters, patently ignores the law in Knicker-

bocker. If Congress could not constitutionally delegate jurisdiction

to New York for its Workmens Compensation scheme upon the

navigable waters, certainly Indiana can not usurp it by statutory

fiat against handicap discrimination upon navigable waters.

Next, Petitioner faults the Indiana Court of Appeals for:

(a) failing to apply the right standard of seaworthiness;

(b) applying the wrong standard of seaworthiness;

(c) by holding that maritime industry standards take

precedence over state law when they conflict.

While this characterization may be slanted by perception and

advocacy, Petitioner has failed to demonstrate any logical connec-

tion between its conclusions above and the Opinion of the Indiana

Court of Appeals.

What the Indiana Court of Appeals states was that the Indiana

Civil Rights Commission

“failed to apply or even consider the seaworthiness doc-

trine in evaluating Wittes claim.”

The Indiana Court of Appeals specifically relied upon Indiana

law, the “safety and efficiency” condition of IC 22-9-1-13 (a) and

found that it does not conflict with the federal seaworthiness doc-

trine, and concluded,

“in this case, resort to the seaworthiness doctrine was

necessary to preserve uniformity in the industry.”

No standards of seaworthiness were altered, amended, changed,

applied or misapplied. Simply stated, the Indiana Civil Rights Com-

20

mission ERRED by failing to consider and apply admiralty law.

Finally, Petitioner notes that American Commercial Barge Line,

at the hearing in the matter, failed to show that “having monocular

vision affects a person’s ability to function.”

At the hearing in the matter, the question presented to

Petitioner’s alleged expert witness stated:

Q: Let me ask you this question Mr. Silver. Again

based on your experience, your expertise, your visit to

the vessel, your knowledge of Miss Barone, could you

tell me what vision she would have if a foreign object

were to lodge in her eye, her good eye, the eye from

which she has vision, would you tell me what vision she

would have?

A: WELL, MOMENTARILY SHE WOULDN’T

HAVE ANY VISION. Transcript of Hearing - Page 64.

A blind seaman responding to an emergency of the vessel be-

comes an emergency to the detriment of the vessel and the remain-

der of the crew.

As for its reasons why certiorari should be granted, Petitioner

states “a lot of confusion exists” as to how far States can go in

regulating the employment practices of maritime employers. With-

out any facts or circumstances to support this conclusion, Petitioner

asks the Court to clanfy this area of the law. To date, the only

confusion that has existed in this matter has been that of the Indiana

Civil Rights Commission, not maritime employers or the Courts.

While this case may be important to the people of Indiana, it

has been the people’s elected judges who have concluded the

Indiana Civil Rights Commission has erred. While the minimum

physical standards of American Commercial Barge Line prohibit

“a lot of handicapped people” from working on its vessels, these

standards have a rational connection to industry hazards, safety

and efficiency considerations.

There is nothing in the record of this case, or extant events,

which give this case “national implications.” It is a simple case of

state administrative agency error which has been connected by

21

State Courts.

Petitioners are simply incorrect as to their characterization that

federal law does not prohibit discrimination in employment based

on handicap. The Rehabilitation Act of 1973, 29 U.S.C. 701 et

seq. prohibits employment discrimination based on handicap, and

these provisions are enforced by the Department of Labor, Office

of Federal Contractor Compliance.

For all the foregoing reasons, Petitioners Writ of Certiorari

should be denied.

—{ Gate

Robert W. Kilroy

Attorney for Respondents

110 Hampstead Village

Hampstead, N.C. 28443

(919) 270-9515

22

CERTIFICATE OF SERVICE

The undersigned, a member of the Bar and Officer of this Court,

certifies that three (3) copies of the foregoing Brief In Opposition

were served this _“ 7 td day of June, 1989 by first class

mail, postage prepaid, and addressed to:

Legal Division

Indiana Civil Rights Commission

Attn: Roy D. Rogers/Gary C. Lamey

32 E. Washington Street, Suite 900

Indianapolis, Indiana 46204

ee face lteoy

a Robert W. Kilroy

Attorney for Respondents

110 Hampstead Village

Hampstead, N.C. 28443

(919) 270-9515