Opposition — Mobil Oil Corp. v. Higginbotham

Supreme Court, U, 8.

PILED

SEP 10 1977

—

Loo

3n the

Supreme Court of the Anited States

OCTOBER TERM, 1977

NO. 76-1726

MOB!L OIL CORPORATION,

Petitioner

FRANCIS NELL HIGGINBOTHAM, ADMINIS-

TRATRIX OF THE ESTATE OF MARSHALL K.

HIGGINBOTHAM, ET AL.

Respondent .

BRIEF IN RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

KIERR, GAINSBURGH, BENJAMIN,

FALLON & LEWIS

Jack C. Benjamin

1718 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

Counsel for Respondent

Mrs. Arline J. Shinn, Ind., et al.

9 — — — — — —

A B Letter Service, inc., 327 Chertres St., New Orleens, Le. (504) 581-5555

i

TABLE OF CONTENTS

PAGE NO.

eee. 1

r K 1

I. Alleged Conflict Betwecb the Circuits 2

II. Seaman’s Status of Mr. Nation............. 17

,, kas baeeas 19

PRPS OP LTT ETT TEPEL TEU ET Eee 22

eee enen. 23

ii

TABLE OF CASES

PAGE NO.

Barbe v. Drummond, 507 F.2d 794, 798

D wtp ede ewe eN die vic 2,3,6,7

Brown v. ITT Rayonier, 497 F.2d 234, 238,

D „ 19

Colditz v. Eastern Airlines, 329 F.Supp. 691

D = EL ha Gao 21

Cox v. Northwest Airlines, 379 F.2d 893

D ˙ ¹lnnnnnn wens 20

Doyle v. Albatross Tanker (Corp.. 367 F. 2d

465, 466-467 (2d Cir. 19660) 10

Estate of Kauzlarich v. Exxon Co., l SA.

405 F.Supp. 332 (D. S.C. 1975)............ 16

Fitzgerald v. United States Lines (o.

374 U.S. 16, 10 L.Ed. 2d 720, 724, 83

i i Se sui oe wi on 600} « 16

Hammil v. Olympic Airways, S. ., 398 F.Supp.

D ·˙ AAA ˙·˙¹¾- 68 16

Holland v. Allied Structural Steel Co.,

539 F.2d 476, 479 (Sth Cir. 1976).......... 18

— v. United States, 333 U.S. 46,

92 L.Ed. 468, 68 S.Ct. 391 (194) 20

11

TABLE OF CASES (Continued)

PAGE NO.

Law v. Sea Drilling Corp., 523 F.2d 793

eT ee Tree? PERE TE ETE 14

Marsh v. Buckeye Steamship Co., 33 F.Supp.

972, 974-75 (N. D. Ohio 1971) ............. 5

McAllister v. United States, 348 U.S. 19, |

99 L.Ed. 20, 75 S.Ct. 6 (1954ÿ::: 21

Mobil Chemical Co. v. Bell, 517 S. W. 2d

D/ ˙ k¶UoNUN— . 21

Moragne v. States Marines Lines, 398 U.S.

375, 26 L.Ed. 2d 339, 349, 350, 352,

353, 354, 361, 90 S.Ct. 1772 (1970) ........ 2,4,5,6,

8,11, 12, 13, 15, 16, 22

Nye uv. A/S D/S Svendborg, 358 F.Supp.

| UE A a a ere ae 16

Peace v. Fidalgo Island Packing Co., 419

F.2d Yi (Sth Cir. 166%ù _rnůre . 10

Petition of Risdal & Anderson, Inc.,

291 F.Supp. 353 (D. Mass. 1968)........... 10

Sealand Services v. Gaudet, 414 U.S. 573,

39 L.Ed. 2d 9, 94 S.Ct. 806 (1974).......... 8

Sennett v. Shell Oil Co., 325 F.Supp. 1

/ ˙ oben beeen ees 16

iv

TABLE OF CASES (Continued)

PAGE NO.

Spiller v. Thomas M. Lowe, Jr. & Associates,

466 F. 2d 903, 910 (8th Cir. 1972).......... 4,5

Sweeney v. Erving, 228 U.S. 233, 57 L.Ed.

SIS, Saeed 20

The Four Sisters, 75 F.Supp. 399

, . 10

The Hamilton, 207 U.S. 398, 52 L.Ed.

D ² ˙ Ddn!nUd——A. „ 39.14

The Harrisburg, 119 U.S. 199, 30 L. Ed.

e 4,8

White v. Transworld Airlines, 320 F.Supp.

, ͤ;»» . o- 21

Williams v. United States, 218 F. 2d 473,

r ha ba deed cde i ccecs 20

STATUTES:

Death on the High Seas Act,

46 U.S. CSS 761, et seg... freer, 8,13

Jones Act, 46 U.S. C. S 689898. 10,11,13

*

TABLE OF AUTHORITIES

2 Benedict on Admiralty, §84, 7-37

D /......

59 Cong. Rec. 4480 (19 20)))))))

G. Gilmore and C. Black, Jr., The Law

of Admiralty §§ 6-31, at 364, 369

r ds de 'ebweie os neass

Landis, Statutes and the Sources of Law,

Harvard Legal Essays, 213, 214 (1934).....

Restatement of Torts (Second), §328D......

Speiser, Recovery for Wrongful Death,

§§ 3:58, 14:6 (2d Ed. 1975)

PAGE NO.

vie 14

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO. 76 - 1726

MOBIL OIL CORPORATION,

Petitioner

versus

FRANCIS NELL HIGGINBOTHAM, ADMINISTRATRIX

OF THE ESTATE OF MARSHALL K. HIGGINBOTHAM,

ET AL.,

Respondent

BRIEF IN RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

STATEMENT OF THE CASE

Respondent, Mrs. Arline J. Shinn, adopts the Statement

of the Case which appears in the Brief in Response to Pe-

‘ition for Writ of Certiorari filed on behalf of respondent,

Francis Nell Higginbotham, et al.

STATEMENT OF ISSUES

Mobil Oil Corporation has petitioned this Court to exer-

cise its supervisory jurisdiction in order to review the de-

cision of the United States Court for Appeals for the Fifth

Circuit in this cause, alleging three grounds:

1. A conflict exists between the First and

2

Fifth Circuits relating to the applicability of Wur-

agne to wrongful deaths occurring on the high

seas;

2. The Court of Appeals for the Fifth Circuit

committed error in its application of Jones Act

status to James Nation; and

3. The trial court and the Court of Appeals for

the Fifth Circuit committed error in their appli-

cation of the doctrine of res ipsa loquitur.

I.

ALLEGED CONFLICT BETWEEN THE CIRCUITS

Petitioner represents to this Court that the Writ should

be issued because of an alleged conflict between the deci-

sion of the Fifth Circuit in this case and that of the United

States Court of A, peals for the First Circuit in Barbe v.

Drummond. 2 It is respectfully submitted that the alleged

conflict between the First and Fifth Circuits is less apparent

than represented.

A detailed analysis of the decision in Barbe v. Drum-

mond 3 reveals that the apparent conflict represented by

petitioner is contained in dictum and is directed to a prin-

ciple which is dissimilar to that at issue in the case at bar.

The First Circuit Court of Appeals in Barbe was faced with

deciding whether recovery could be made for the conscious

pain and suffering endured by the decedent in an action for

1. Moragne v. States Marine Lines, 398 U.S. 375, 26 L.Ed. 2d 339, 90

S. Ct. 1772 (1970).

2. Barbe / Drummond, 507 F. ad 794 (1st Cir. 1974).

3. /.

3

death occurring on the high seas.

In Barbe, suit was brought by the administrator of the

estate of the decedent, Janet Barbe, who died due to ex-

posure after the small motorboat on which she was a pas-

senger sank on the high seas off of the coast of Massa-

chusetts. The district judge before whom the case was tried

awarded plaintiff $15,000 for decedent’s conscious pain and

suffering and an additional $1,500 for funeral expenses.

Defendant-owner of the small craft appealed to the United

States Court of Appeals for the First Circuit claiming that

the trial judge committed error by awarding damages for

conscious pain and suffering. Defendant-owner contended

that this type of damage is precluded from the pecuniary

loss standard of the Death on the High Seas Act‘ (herein-

after referred to as DOHSA) as well as under the General

Maritime Law. The court, after briefly reviewing the juris-

prudence interpreting the pecuniary loss standard of

DOHSA concluded that conscious pain and suffering could

not be recovered under that statute.

The court then turned to an examination of the General

Maritime Law to determine whether under that body of law

there could be recovery for conscious pain and suffering.

Plaintiff had advanced three theories of recovery. The first

was to adopt state law as surrogate federal law to supple-

ment the General Maritime Law. As both plaintiff and

defendant were residents of the State of Massachusetts,

plaintiff argued, it is not inimical to the maritime law to

adopt the law of the state of which the litigants are citizens

to complement the General Maritime Law.® The court, how-

ever, chose not to travel that course because it would have

4. 46 U.S.C. S 761, et seq.

5. The Hamilton, 207 U.S. 396, 52 L.Ed. 264 (1907).

4

required the federal court to ascertain whether the state

survival statute was meant to apply to admiralty claims

and also ‘‘whether the concerned state has enacted a survival

statute.” ®

The second theory advanced by pla was to apply

Moragne v. States Marine Lines.“ The court declined to ap-

ply Moragne in this context. It is submitted that the First

Circuit correctly rejected the application of Woragne in

that case for Moragne created a cause of action for wrong-

ful death and the issue before the First Circuit was whether

a cause of action survived the decedent allowing recovery

for the decedent’s pain and suffering endured prior to

death.

The third and final theory advanced by plaintiff, and the

one adopted by the First Circuit, was that Moragne not only

removed the bar of The Harrisburg ® , which precluded the

decedent's survivors’ cause of action to recover the damages

they suffered as a result of the death, but also that Voragne

removed the prohibition against the survival action, the

action of the decedent to recover for the damages he suf -

fered as a result of the defendant’s fault.

The First Circuit relied on the reasoning advanced by the

Eighth Circuit Court of Appeals in Spiller v. Thomas II.

Lowe, Jr. & Associates.® In Spiller, several employees of

the defendant-vesselowner drowned when the boat in which

they were riding capsized and sank on the Red River in Ar-

kansas. The action was brought by the personal representa-

6. Barbe v. Drummond, supra, at 798.

7. Supra. note 1.

8. 119 U.S. 199, 30 L.Ed. 368 (1886).

9. 466 F.2d 903 (8th Cir. 1972).

Oe —ʒ— —

5

tives of the decedents’ estates and by their surviving wives,

children and parents. Liability was predicated on negli-

gence and the unseaworthiness of the vessel. The court

found no evidence of gross negligence but did find that the

vessel was unseaworthy. Accordingly, judgment in the

amount of $455,000 for all beneficiaries was entered.

Included in the award was $15,000 for each of the de-

cedent’s estates as compensation for the pain and suffering

each decedent suffered prior to his death. The decision of

the trial court finding that there existed a survival action

upon which the recompense for pain and suffering was

made was questioned by defendant and appealed to the

Eighth Circuit.

The Circuit Court analyzed the methodology employed

by this Court in Moragne. The Eighth Circuit reasoned as

this Court did in Moragne that, because there is no congres-

sional prohibition against a survivor’s action and because of

the multiplicity of state survivors’ actions, public policy is

to permit such an action; therefore, the Court was willing

to make that small leap from the decision in Moragne

to am axseptenee of the carvivel of perenne injury ectiqns

as an integral part of the general maritime law. 5

In neither Barbe nor Spiller was the court squarely faced

with deciding the issue whether the wrongful death action

to recover the damages suffered and sustained by the de-

cedent’s beneficiaries is to be georgrahically limited to those

deaths occurring within state territorial waters; in other

10. Spiller v. Thomas M. Lowe, Jr. & Associates, supra at 910, a. 9,

quoting from Marsh v. Buckeye Steamship Co., 33 F.Supp. 972, 974

9765 (N. O. Ohio 1971).

6

words, neither court, with respect to the Moragne wrongful

death action as opposed to the survivor’s action, decided

whether DOHSA was the sole and exclusive remedy for

deaths occurring on the high seas.

Petitioner’s reliance on the apparent conflict between

Barbe and the instant case is misplaced. In support of its

Petition for a Writ of Certiorari to the Fifth Circuit, peti-

tioner compares the language used by the court in Barbe

and in this case’! Respondent respectfully submits to this

Honorable Court that dependence on the language petition-

er relies upon in Barbe to support the granting of writs in

this instance is inappropriate and misplaced for several

cogent reasons.

First, the legal proposition at issue in Barbe was whether

recovery could be made for the conscious pain and suffer-

ing of the decedent and for funeral expenses, that is,

whether the decedent's cause of action survived and could

be asserted by her beneficiaries. The language relied on by

petitioner is dictum directed to the Court’s analysis whether

decedent’s estate could recover the funeral expenses incur-

red. It is in this context that the quoted language must be

viewed. It is, moreover, respectfully submitted that the re-

covery sought for funeral expenses was made for the estate

and was part of the damages sought in the survival action,

not as damages recoverable in a wrongful death action.

According to Speiser l, it is noted that recovery of funer-

al expenses can be made under either the survival action or

N. Petition of Mobil Oil Corporation, et al., at 10-11.

12. Recovery for Wrongful Death, §§ 3:58, 14:6 (2d Ed. 1975).

7

the wrongful death action, depending on whether dece-

dent’s estate paid for the funeral or whether the decedent’s

survivors advanced the funeral expenses.

Respondent further directs the Court's attention to the

fact that the issue before it and on which petitioner seeks

to invokes this Court’s jurisdiction is whether plaintiffs may

recover damages for loss of society in a wrongful death

action. The issues presented for review are clearly inappo-

site to those at issue in Barbe.

Second, the First Circuit analyzed the reason why some

courts have been reticent to grant recovery for funeral ex-

penses incurred:

[S]ince the estate would be liable for funeral

expenses had death occurred naturally, such ex-

penses unlike lost earnings do not represent a

pecuniary loss resulting from the tortious conduct

and their recovery would represent a windfall. la

Thus, the rationale of the First Circuit to deny recovery

of funeral expenses in the survival action was that the es

tate would, regardless of the tortious conduct, nevertheless

be responsible for funeral expenses: the tortious conduct

of defendant merely advanced the time of payment.“.

It is respectfully submitted that Barbe and the present

case are inapposite and consequently the grounds to invoke

the supervisory jurisdiction of this Court are insufficient.

13. Barbe v. Drummond, supra at 802, emphasis supplied.

14. See also S. Speiser, supra, § 3:58 (Supp. Dec., 1976), who con-

cludes that this was the basis for the First Circuit's denial of recovery

for funeral expenses.

8

“We accordingly overrule The Harrisburg, and hold that

an action does lie under General Maritime Law for death

caused by violation of maritime duties.” 18 This was the

holding of this Court through Mr. Justice Harlan in Mor-

agne, creating a new cause of action for wrongful death

under the General Maritime Law. The succinct and unam-

biguous holding of this Court is unrestricted and contains

no territorial or geographic boundaries. The cause of action

for wrongful death runs in favor of the beneficiaries of de-

cedents who lose their lives regardless of the location of the

delict on the high seas or within the territorial waters of a

state or nation.

The question presented for review is whether the Death

on the High Seas Act ls is the exclusive remedy for deaths

occurring on the high seas. It is evident from the legislative

history of DOHSA, its jurisprudential development, as well

as from this Court’s holding in Moragne an its interpreta-

tion in Sealand Services v. Gaudet that the statute was

never intended to be nor is the exclusive remedy for deaths

occurring on the high seas.

mat DOHSA evidences no intention on the part of Con-

gress to make the Act the sole and exclusive remedy for

deaths occurring on the high seas is clear from the legisla-

tive history and debates on the floor of the House concern-

ing the Act. As originally proposed, Section 7 of the Act

stated as follows:

15. Moragne v. States Marine Lines, supra at 361, emphasis supplied.

16. 46 U.8.C.6§ 761, et seq.

17. 414 U.S. 573, 39 L.Ed. 2d 9, 94 S.Ct. 806 (1974).

9

That the provisions of any state Statute giving or

regulating rights of action or remedies for death

shall not be affected by this Act as to causes of

action accruing within the territorial limits of any

State. 8

The legislative debates on the Act demonstrate that one

of the major concerns of Congress was that Section 7, as

originally drafted, might restrict the rights of action and

remedies afforded by state law to its citizens'® Congressman

Mann of Illinois led opposition to Section 7 because of his

concern that the legislation would abrogate a citizen’s right

to remedies extended to him by state law. He, therefore,

successfully brought an amendment to the Act which de-

leted the last clause, leaving Section 7 of the Act to read

as follows:

That the provisions of any state Statute giving or

regulating rights of action or remedies for death

shall not be affected by this chapter. 20

It has been held by this Court that it is not inimical to

the interests of the Maritime Law to give extra territorial

application to state laws in maritime causes of action. In

The Hamilton, 27 the Court, through Mr. Justice Holmes,

unequivocally held that state law in an action for wrongful

death between citizens of the same state could be utilized

by the claimant as a means of recovery for wrongful death.

The passage of DOHSA, as amended, did not in any way

restrict, limit or affect the holding of this Court in that

case.

18. 59 Cong. Nec. 4480 (1920).

19. /d. at 4484.

20. 46 U.S.C. § 761.

21. Supra note 5.

10

Since the enactment of both DOHSA and the Jones

Act22 , the courts have not interpreted either act to be the

exclusive remedy to recover for the death of a seaman on

the hich seas. In Doyle u. Albatross Tanker Corp. 28, the

court, faced with deciding whether the Jones Act and

DOHSA were exclusive remedies, answered in the negative.

There is not a whisper in the text of the Jones

Act or its legislative history to indicate that,

with respect to seamen in the special area covered

by the Death on the High Seas Act, Congress in-

tended the Jones Act to supersede the Death on

the High Seas Act.. .Moreover,. . . it appears to

be the settled law of the lower federal courts,

expressed in numerous cases, that both statutory

remedies may be availed of for the purpose of

recovering damages for the wrongful deaths of

seamen caused by occurrences on the high seas,

and that the action in admiralty created by the

Death on the High Seas Act may be pursued by

the personal representative of a deceased sailor

as well as the action at law provided for in the

Jones Act.24

It has been held, also, that DOHSA affords a remedy for

an additional class of beneficiaries to that of the Jones Act,

and the acts complement each other. 25

22. 46U.S.C§ 688.

23. 367 F.2d 466 (2d Cir. 1966).

24. /d. t 466-467; see also Petition of Risdal & Anderson, inc., 291

F.Supp. 363 (O. Mass. 1968); Peace v. Fidalgo Island Packing Co.,

419 F.2d 371 (9th Cir. 1969); d. Gilmore and C. Black, Jr., The Law

of Admiralty § 6-31 at 364 (2d Ed. 1975).

25. The Four Sisters, 75 F.Supp. 399 (O. Mass. 1947).

—

11

Petitioner’s position that DOHSA is the exclusive remedy

for deaths occurring on the high seas and that decisional

law, Moragne, cannot supplement the congressional act is

untenable, particularly when one considers that the courts

in the past have delicately woven together the rights and

remedies afforded to seamen by statutes as well as decision-

al law. The Jones Acts was enacted by Congress to over-

come the fellow servant doctrine, thus affording a seaman a

cause of action for negligence against his employer. It is

elementary in admiralty law that the Jones Act is not the

sole and exclusive remedy afforded to seamen; a seaman has

at his disposal the additional remedy of unseaworthiness

which has been created by decisional law. The proposition

advanced by petitioner in this cause would have the Court

ignore this interrelationship of statutory and decisional

remedies created for the benefit of injured seamen. As the

unseaworthiness remedy supplements the negligence remedy

extended by the Jones Act, the judge-made remedy for

wrongful death similarly complements and supplements

the statutory remedy created for deaths occurring on the

high seas, DOHSA.

In creating the wrongful death remedy, in Moragne,

Justice Harlan analyzed the effect of wrongful death legis-

lation enacted by the states as well as the United States

Congress. Legislation, he stated, plays a broader role than

the limited parameters drawn by enactments of the legis

lative body.

It has always been the duty of a common-law

court to perceive the impact of major legislative

innovations and to interweave the new legislative

26. 46 U.S.C.§ 688.

12

policies with the inherited body of common-law

principles-- many of them deriving from earlier

legislative exertions.27

What is often considered the common law finds its foun-

tainhead in legislative enactments 28 As every state has en-

acted wrongful death legislation, and as Congress has per-

mitted recovery for wrongful death, the heretofore exist-

ing public policy against recovery for wrongful death has

been abrogated; rather, the public policy is to favor recov-

ery for the wrongful death of an individual.29

Where death is caused by the breach of a duty

_ imposed by Federal Maritime Law, Congress has

established a policy favoring recovery in the ab-

sence of a legislative direction to except a particu-

lar class of cases. 30

Prior to Moragne, the rules of law which had evolved

concerning the rights and remedies for wrongful deaths

occurring on the high seas and in state territorial waters

created three anomalies which the Court recognized as in-

equitable.

First] within the territorial waters, identical

conduct violating federal law (here the furnishing

of an unseaworthy vessel) produces liability if

the victim is merely injured, but frequently not

if he is killed.

27. Moragne v. States Marine Lines, supra at 352.

28. /d., quoting from Landis, “Statutes and the Sources of Law,”

Harvard Legal Essays, 213 214 (1934).

29. /d. at 361.

30. /d.

These anomalies recognized by the Court have destroyed

the constitutionally mandated uniformity of the maritime

law.

13

[Second] identical breaches of the duty to pro-

vide a seaworthy ship, resulting in death, produce

liability outside the three mile limit . . but not

within the territorial waters of a State when a

local statute excludes unseaworthiness claims.

[Third] a true seaman -- that is, a member of a

ship’s company, covered by the Jones Act--is

provided no remedy for death caused by unsea-

worthiness within territorial waters while a long

shoreman to whom the duty of seaworthiness was

extended only because he performs work tra-

ditionally done by seamen, does have such a

remedy when allowed by a state statute.?!

Our recognization of a right to recover for wrong-

ful death under General Maritime Law will assure

uniform vindication of federal policies, removing

the tensions and discrepancies that have resulted

from the necessity to accommodate state reme-

dial statutes to exclusively maritime substantive

concepts. [Citations omitted.] Such uniformity

not only will further the concerns of both of the

1920 Acts [The Death on the High Seas Act and

The Jones Act] but also will give effect to the

constitutionally based principle that Federal Ad-

miralty Law would be a ‘system of law co-exten-

sive with, and operating uniformly in, the whole

country. 32

31. d. at 363-354.

32. /d. at 360.

14

The anomalies created by the territorial distinctions

noted by the Court in Moragne would be perpetuated and

possibly even new anomalies may be created if the Moragne

cause of action for wrongful death is to be geographically

limited to those deaths occurring on territorial waters.33

As noted by Judge John R. Brown in Law v. Sea Drill-

ing Comp. , a multifacted system is created by geographi-

cally limiting Moragne to state territorial waters:

Where this leaves us in that the alternative to our

holding is to impose an unwieldy trifid system on

recovery for maritime deaths. [i] If the death

occurred within territorial waters, recovery could

be had under the Moragne wrongful death-sur-

vival action. [ii] If the death occurred on the

High Seas and the unwary pleader invoked the

magical provisions of F.R. Civ. P. 9(h), or in the

unlikely event that he could not obtain juris-

diction in any state court, full survival recovery

coula be had under the decision law-created

federal maritime survival action but wrongful

death recovery would be limited to DOHSA’s

‘pecuniary loss. And [iii] the legal helmsman

with a closer eye on the telltale -- for the same

death on the High Seas-- could file his action at

law and under substantive maritime princples

would recover all that Moragne and Gaudet allow.

33. See 2 Benedict on Admiralty § 84, 7-37 (7th Ed. 1975); for ex-

ample, the rule of The Hamilton, supra note 5, would presumably be

viable permitting actions to be brought under state law for wrongful

death where the claimant and defendant are citizens of the same state.

34. 523 F.2d 793 (Sth Cir. 1975).

15

To limit the scope of Moragne would limit elements of

recovery depending on the fortuitous location of the death;

Gaudet damages for loss of society and services would be

permitted for deaths occurring on territorial waters but the

decedent’s heirs would be precluded from that recovery for

deaths occurring on the high seas. Why should elements of

damages depend upon the location of the delict, particu-

larly when a uniform body of federal law should apply?

Should the rights of claimants be any more or less when

tortious conduct is committed on the high seas rather than

in territorial waters? Respondent respectfully submits that

to geographically restrict the Moragne cause of action would

be an arbitrary and capricious limitation which contravenes

the admiralty’s special solicitude for the welfare of those

men who [undertake] to venture upon hazardous and un-

predictable sea voyages and contradicts the rule of the

‘humane and liberal character of proceedings in admiralty

to give than to withhold the remedy. . .” 35

This Court in Gaudet took an expansive view of the

Moragne cause of action holding that the recovery for

wrongful death is not limited by state or federal legislation

or decisional law interpreting these statutes. As stated by

Gilmore and Black:

Thus, Gaudet, if it is to be taken as representing

the settled view of the majority of the Supreme

Court, amply confirms our comment (written

before Gaudet had been decided) that the Mor-

agne case had ‘reduced both DOHSA and the

FELA death provisions incorporated in the Jones

Act to the level of nonstatutory Restatements.

36. Morngne v. State Marine Lines, supra at 349.

16

Under Gaudet, indeed, all the state statutes seem

to have joined the federal statutes on the scrap

heap. 38

Most courts since the Moragne decision have recognized

that the cause of action created by that case has no geo-

graphic limitations. In Sennett v. Shell Oil Co. 37, a case in

which plaintiff was killed on the high seas, the district judge

analyzed the Moragne decision and concluded that Con-

gress, by enacting DOHSA, did not intend to place a limi-

tation on recovery for maritime wrongful death. ‘As Mor-

agne pointed out, the policy implicit in the state and fed-

eral wrongful death statutes indicates that recovery for

maritime death should be permitted absent ‘a legislative

direction to except a particular class of cases.’ [Citations

omitted.] Congress has not so directed. The Death on the

High Seas Act is not an exclusive remedy for those whose

relatives perish wrongfully one marine league from shore.

Maritime law is regulated not only by statute but also by

decisional law. As this Court in Fitzgerald v. United States

Lines Co3® stated:

Article III of the Constitution vested in the fed-

eral courts jurisdiction over admiralty and mari-

36. Gilmore and Black, supra at 369-370.

37. 325 F.Supp. 1 (E. O. La. 1971).

38. id. at 7; see also Nye v. A/S DSS Svendborg, 368 F. Supp. 145

(S.D. N.Y. 1973); Estate of Kauziarich v. Exxon Co., USA, 405 F.

Supp. 332 (U. $.C. 1975); Hammil v. Olympic Airways, & A., 398 F.

Supp. 829 (D.C. D.C. 1975).

39. 374 U.S. 16, 10 L.Ed. 2d 720, 83 S.Ct. 1646 (1963).

17

time cases, and, since that time, the Congress has

largely left to this Court the responsibility for

fashioning the controlling rules of admiralty law.

This Court has long recognized its power and

responsibility in this area and has exercised that

power where necessary to do so.4

The position advanced by petitioner in this cause would

have this Court abdicate its long-standing policy to fashion

the rules of the General Maritime Law and weave those ele-

ments compatibly with those of statutory rules into a flexi-

ble fabric which constitutes our admiralty law. It is respect-

fully submitted that it was within the power and authority

of this Court to create the wrongful death remedy in Mor-

agne and it does not contravene any legislative purpose to

give to that decisional remedy application to an area hereto-

fore governed solely by statute.

II.

SEAMAN'S STATUS OF MR. NATION

Petitioner further contends to this Honorable Court that

the decision of the Fifth Circuit granting Jones Act status to

James Nation is without merit and should Le reversed. The

Court, in holding that Mr. Nation was a Jones Act seaman

ond was entitled to bring an action under the Jones Act

ag unst his employer, analyzed Mr. Nation's work history

and reasoned that over the two years prior to his death he

perfonned a substantial amount of his work aboard vessels

and that his assignment to the fixed platform was fortuitous

and of a temporary nature. To deny Mr. Nation Jones Act

41. /d. at 10 L.Ed. 2d 724.

18

status solely because of the work assignment at the time of

his death would ignore the primary function and purpose

he served as an employee of Mobil.

Petitioner would suggest to this Honorable Court that the

approach of the Fifth Circuit in affording Jones Act status

to Mr. Nation is a novel and new approach fraught with per-

plexing and unsolvable problems. To the contrary. The ap-

proach taken by the Court in affording Jones Act status to

Mr. Nation is neither novel nor unworkable. It merely rep-

resents the application of principles which recently evolved

in the jurisprudential development of the Jones Act in the

Fifth Circuit.

In particular, respondent respectfully submits that the

approach taken by the Fifth Circuit to analyze the claim-

ant’s work history is one utilized in Holland v. Allied Struc-

tural Steel Co. 41 In that case, the court reversed the jury’s

determination that the decedent, a structural steel worker,

was a seaman within the purview of the Jones Act. The

court found that the decedent’s contact with vessels was

intermittent and stated that in analyzing seamen’s status

under the Jones Act the court must focus on an em-

ployee’s principal duties, the time spent aboard or in the

service of a vessel, and the relation of his injury to his

vessel-related activities. 2

Respondent further respectfully submits that the issues

of Jones Act status in this cause is the transposition of that

41. 539 F.2d 476 (5th Cir. 1976).

42. /d. at 479.

19

at issue in Brown v. ITT Rayonie*? wherein the claimant,

seeking to recover damages for injuries sustained while

riding in a motorboat in order to obtain water samples for

his employer, was denied Jones Act status. Though the

plaintiff in that cause was found to be aiding in the func-

tion or mission of the vessel and though the vessel was in

navigation, the court found that he was a casual worker on

the water’’ whose work on the vessel was incidental to his

shore-based employment! As Mr. Brown was denied Jones

Act status because of his intermittent contact with the

vessels, Mr. Nation should not be denied Jones Act status

because of his intermittent and transient contact with a

fixed stationary platform. To do so would contravene the

admiralty’s humane and liberal policy to give rather than

withhold a remedy.

III.

RES IPSA LOQUITUR

Petitioner finally seeks review of the decision in this

cause assessing liability against it by the application of the

doctrine of res ipsa loquitur. The elements of that legal

principle are perhaps best defined in Section 328D, Restate-

ment of Torts (Second):

(1) It may be inferred that harm suffered by the

plaintiff is caused by negligence of the defendant

when

(a) The event is of a kind which ordinarily

does not occur in the absence of negligence;

43. 497 F.2d 234 (5th Cir. 1974)

44. id at 238.

20

(b) Other responsible causes including the

conduct of the plaintiff and third persons are

sufficiently eliminated by the evidence; and

(c) The indicated negligence is within the

scope of the defendant’s duty to the plain-

tiff.

This doctrine permits the trier of fact to infer from the

facts presented that the delict was caused by the defen-

dant’s fault; in other words, the act would not ordinarily

have happened in the absence of fault on the part of some-

one. The party invoking the rule need not exclude any

other possibilities of the cause of the accident; it is suffi-

cient to prove facts from which the trier of fact may reason-

ably conclude that the fault was more probably than not

that of the defendant. Sweeney v. Erving.*®

That the doctrine applies in admiralty is unquestioned.

Johnson v. United States.4®

The state of the art of aircraft technology, design, and

training permits the application of res ipsa loquitur to air-

craft cases. Cox u. Northwest Airlines. In Williams v.

United Stat es s the Fifth Circuit stated:

Res ipsa loquitur is a rule based upon human ex-

perience and its application to a particular situa-

tion must necessarily vary with human experi-

ence. A situation to which the doctrine was not

applicable a half century ago because of insuf-

45. 228 U.S. 233, 57 L.Ed. 815, 33 8. Ct. 416 (1913).

46. 333 U.S. 46, 92 L.Ed. 468, 68 S.Ct. 391 (1948).

47. 397 F.2d 893 (7th Cir. 1967).

48. 218 F.2d 473 (Sth Cir. 1955).

21

ficient experience or a lack of technical know-

ledge, might today fall within the scope of the

rule, depending upon what experience is shown.49

The Fifth Circuit in this case relied on the opinions in

Colditz v. Eastern Airlines, 50 White u. Transworld Air-

lines. 51 and Mobil Chemical Co. v. Hell. 52 all of which in-

volved issues substantially similar to those in this matter.

In those cases, the courts sustained the application of the

res ipsa loquitur rule because the circumstances of the

accident raised the inference that the accident would not

have occurred but for the negligence of the defendant.

The second requirement of the rule is that the instrument

causing harm be within the exclusive control of the defen-

dant. The helicopter in question was maintained by em-

ployees of Mobil, housed at Mobil facilities and flown by

Mobil pilots. On the fatal day the pilot of the helicopter

was a Mobil employee. That the instrumentality causing

the deaths in this case was in the exclusive control of Mobil

cannot be denied.

Finally, in affirming the judgment of the district court,

the Fifth Circuit found that the decision of the trial court

was not clearly erroneous. The district judge was able to

evaluate the testimony of the live witnesses and in the ab-

sence of clear error, the judgment was properly affirmed.53

49. /d. at 476.

50. 329 F.Supp. 691 (S.D.N.Y. 1971).

51. 320 F.Supp. 655 (S.D. N.Y. 1970).

52. Mobil Chemical Co. v. Bell, 517 SW. 2d 245 (Tex. 1974).

53. McAllister „ United States. 348 U.S. 19, 99 L.Ed. 20, 75 S.Ct.

6 (1954)

22

CONCLUSION

In summary, respondent submits that petitioner's

grounds for this Court’s review of the application of the

Federal Maritime Law to deaths occurring on the high seas

is unsupported by the Moragne decision and its progeny.

The alleged conflict between the First and Fifth Circuits

does not exist as the cases relied on by petitioner are in-

apposite.

Furthermore, the decision of the Fifth Circuit to afford

Mr. Nation a Jones Act remedy is in line with the juris-

prudence interpreting the Jones Act. There is an invalid

basis advanced by petitioner to grant a writ on that issue.

Finally, the Court’s application of the res ipsa loquitur

doctrine is clearly supported by the evidence and the facts.

Absent a finding that the trial court’s evaluation of the evi-

dence and the applicable law is clearly erroneous there are

insufficient grounds to grant a writ to review that issue.

Accordingly, respondent respectfully urges that this

Court exercise its discretion and deny the Writ of Certior-

ari requested by petitioner.

Respectfully submitted,

KIERR, GAINSBURGH, BENJAMIN,

FALLON & LEWIS

23

Jack C. Benjamin

1718 First National Bank of

Commerce Building

New Orleans, Louisiana

504-522-2304

Attorneys for Mrs. Arline J.

Shinn, Ind., et al.

CERTIFICATE OF SERVICE

The undersigned counsel for respondent has caused three

copies of the foregoing Brief in Response to Petition for

Writ of Certiorari to be served on Carl J. Schumacher, Jr.,

1106 Arabella Street, New Orleans, Louisiana 70115; Jack

Caldwell, 519 Main Street, Post Office Box 592, Franklin,

Louisiana 70538; Messrs. Christovich & Kearney, American

Bank Building, New Orleans, Louisiana 70130; Messrs.

Thompson and Sellers, Post Office Box 308, 112 South

Louisiana Avenue, Abbeville, Louisiana 70510; and I. P.

Saal, Jr., Post Office Box 176, Gueydan, Louisiana, by

placing same in the United States mail, postage prepaid,

this 9th day of September, 1977.