Petition — Norfolk & Western Railway Co. v. White

In The ioers

Supreme Court of the Anited States

October Term, 1977

NORFOLK AND WESTERN RAILWAY, ‘

Petitioner,

We

RALPH J. WHITE, III,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

Peter W. Low

JouHNn CALvIN JEFFRIES, JR.

313 Dover Road

Charlottesville, Virginia 22901

Counsel for Petitioner

WiLuiaAM T. PRINCE

Williams, Worrell, Kelly & Greer

1700 Virginia National Bank Bldg.

Norfolk, Virginia 23510

Counsel for Petitioner

July 29, 1977

Page

I a a l

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I 3

Reasons For GRANTING THE PETITION ................0--.0c2-0c00ceececeeeeeeeeeeee 7

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APPENDIX

(Opinion and Judgment of the Supreme Court of Virginia)

CITATIONS

’ Cases

Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366 (1953) .. 11

Construction Laborers v. Curry, 371 U.S. 542 (1963) 202000... 7

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) —.0000...... 6

DeMartino v. Bethlehem Steel Corp., 164 F.2d 177 (ist Cir. 1947) 11

Flowers v. Travelers Ins. Co., 258 F.2d 220 (5th Cir. 1958) _........ il

I.T.O. Corp. v. Benefits Review Board, 529 F.2d 1080 (4th Cir.

IE cencevintencnprensecsctntnicntgintnentasienenties IT na ET aa 8

Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th Cir.

STEED senpicennnatndoriutintnemnciiepeibirialatsunttapibnighisnjcainuiincnanmnmaiccimnamintapmuanes 8

Mercantile Nat’! Bank v. Langdeau, 371 U.S. 555 (1963) ............ 7

Nogueira v. N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930) 0000000... 6

Northeast Marine Terminal Co., Inc. v. Caputo, 45 U.S.L.W.

eg ae aT CT TS ee en MeN Ie passim

Pennsylvania Railroad Co. v. O’Rourke, 344 U.S. 324 (1953) ...... 6

Ryan Stevedoring Co., Inc. v. Pan-Atlantic S.S. Corp., 350 U‘S.

SH PRI Shnenskticcistiessinnisceitidiitinibiirtcematiemacananbidiniias hihi nals nedtaie a 12

Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946) 000000000... 12

Travelers Ins. Co. v. McManigal, 139 F.2d 949 (4th Cir. 1944) ... 11

Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1976) ........ 8

Statutes

Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 000. 5

Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.

I sukinrceseictiinctnseiesanscnendsiansemictiianpanieniditciitiaaatintieaeadaattintai 23

SEIT SEEDS ° svinccsnvincinceninsicsquintnitadsiiebtintibiinssintiiniaiiiiciniantiauel 2, 6

ee ee ee ET ET 2,°5

Miscellaneous

Brief for Petitioner in International Terminal Operating Co., Inc.

IR I 13

Brief of the Solicitor General in Northeast Marine Terminal Co.,

Ss Oh, SII, GRE SII cicesinensisrccsesecssenibicteidulaclanitiatenestidieeenes ...8, 13

Hampton Roads Maritime Association, 1977 Annual of the Port

Ie I CI ctiniccinciniccsccseitsitsiccietenicatsintasiaiaasitiaarai 3

In The

Supreme Court of the United States

October Term, 1977

NORFOLK AND WESTERN RAILWAY,

Petitioner,

Vv.

RALPH J. WHITE, III,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

Petitioner respectfully seeks the grant of a writ of certio-

rari, vacation of the judgment below, and remand of the

case to the Supreme Court of Virginia for further considera-

tion in light of Northeast Marine Terminal Co., Inc. v.

Caputo, 45 U.S.L.W. 4729 (1977), Nos. 76-444 & 76-454,

decided on June 17, 1977.

OPINION BELOW

Pa pee ae ed

The opinion of the Supreme Court of Virginia is report

OB cons Va. ......, 232 S.E.2d 807 (1977), and is reproduced

2

as the Appendix to this petition. The case was commenced in

the Circuit Court of the City of Norfolk, where it was dis-

missed without opinion.

JURISDICTION

The judgment of the Supreme Court of Virginia was

entered on March 4, 1977. On May 6, 1977, Mr. Chief

Justice Burger signed an order extending the time for filing

a petition for a writ of certiorari to and including August 1,

1977. Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

QUESTION PRESENTED

Whether respondent White was an “employee” within

the meaning of that term in the Longshoremen’s and Harbor

Workers’ Compensation Act when he sustained a hearing

loss as a result of maintaining electrical equipment used in

re — of loading coal on board ships in the Norfolk

arbor.

STATUTE INVOLVED

Section 2(3) of the Longshoremen’s and Harbor Work-

ers’ Compensation Act, 44 Stat. 1424, as amended, 86 Stat.

1251, 33 U.S.C. § 902(3) (Supp. V 1975) provides in part:

The term “employee” means any person engaged in

maritime employment, including any longshoreman or

other person engaged in longshoring operations . . ..

Section 5 of the Act, 44 Stat. 1424, as amended, 86 Stat.

1263, 33 U.S.C. § 905 (Supp. V 1975) provides in part:

The liability of an employer . . . shall be exclusive

and i f all other liabili

= oo liability of such employer to

3

STATEMENT OF THE CASE

Petitioner Norfolk and Western Railway is a major coal

carrier.’ It operates the Lambert’s Point marine terminal in

Norfolk, Virginia. The terminal includes railyards, dock-

side installations, and piers extending into the navigable

waters of the Elizabeth River. Respondent Ralph J. White,

III, works at the Lambert’s Point facility. His job is to

service the massive electrical machinery used to transfer

coal from railroad cars to waiting vessels. In 1976, Norfolk

and Western loaded more than 25 million tons of coal for

shipment all over the world.’ rs

Respondent claims to have suffered a hearing loss over a

period of about two years while working with the electrical

equipment that moves the coal. The coal is loaded on the

ships from Pier 5 and Pier 6. Because the loading process

is different at these two piers, separate attention to Mr.

White’s responsibilities at each pier is required.

Pier 6 is where most of the loading occurs. Mr. White’s

involvement in the loading process at Pier 6 begins when

fully-loaded railroad cars arrive at the Barney dumper

house, which is located about 425 feet from the piers. The

Barney dumper house consists of an electrical room and

enormous machinery which turns the loaded railroad cars

over and dumps the coal into receiving bins. The coal

then proceeds by way of conveyor belts to the BC transfer

house, which is located approximately 75 feet from the

head of Pier 6. The BC transfer house contains an electrical

room which supplies the power to operate the system of

1 The facts of the case are essentially undisputed. As recited here,

they are derived from the opinion of the Supreme Court of Virginia

which is attached as the Appendix and from the undisputed evidence

presented at the hearing described at page 6, infra.

2 See Hampton Roads Maritime Association, 1977 Annual of the

Port of Greater Hampton Roads.

4

conveyor belts. When the coal leaves the BC transfer house,

it continues on the conveyor belts until it reaches the pier.

Pier 6 is equipped with two shiploaders. A shiploader is

a structure some 196 feet high which is designed to receive

the coal from the conveyor belts and transfer it into a ship’s

hold by means of a telescoping chute. A Norfolk and

Western deck foreman supervises the operation of the ship-

loader from the deck of the vessel. He coordinates with the

captain and chief officer of the vessel and specifies the

direction of the loading. The actual operator of a ship-

loader sits in a cab about 60 feet above the deck of a ship

during the loading process. The electrical room in each

shiploader is located about 50 feet above the operator’s cab

or a total of 113 feet above the pier and the deck of a

waiting vessel.

Norfolk and Western is also responsible for “trimming”

the ship, that is, for distributing the weight of the coal prop-

erly so that the ship will not list. This is accomplished in

part by an hydraulic “trimming” system located near the

bottom of the chute which feeds the coal into the ship’s

hold. This hydraulic system is also operated by electrical

power.

Mr. White maintains the electrical facilities at the Barney

dumper house electrical room, at the BC transfer house

electrical room, and at the electrical rooms located in each

of the shiploaders. He spends the majority of his time at

these facilities. In addition, Mr. White uses walkways along

the conveyor belts to reach two additional conveyor belt

drive motors. Moreover, his duties at the shiploaders include

electrical maintenance of the telescoping chutes and their

hydraulic “trimming” systems. When a ship is not being

loaded, he performs this function from a maintenance plat-

form that is extended partly over the pier and partly over

the water. The platform is about 25 feet above pier level. If

5

a malfunction occurs while a ship is in berth, Mr. White is

required to board the vessel and make the necessary repairs

so that coal can continue to flow properly into the ship.

Pier 5 is a secondary facility which uses a loading process

that is not assisted by shiploaders. The electrical equipment

at Pier 5 raises a single coal car and dumps the coal into a

pan from wh ‘ch it flows by gravity into the ship’s hold. Mr.

White’s duties at Pier 5 consist of maintaining equipment

in the motor house electrical room as well as other electrical

equipment actually on the pier. The machinery on the pier

is complex and massive. Access is difficult and usually re-

quires that Mr. White board a floating barge in order to be

taken to the point of trouble.

The present case was begun under the Federal Employers’

Liability Act (FELA), 45 U.S.C. §§ 51-60, in the Circuit

Court of the City of Norfolk. Mr. White alleged that he

suffered a hearing loss due to the noise conditions at the

electrical rooms in the Barney dumper house, the BC trans-

fer house, the two shiploaders on Pier 6, and the motor

house on Pier 5. The case was tried to a jury and, aftcr a

verdict was returned for the defendant, the trial judge

ordered a new trial on plaintiff's motion.

At this point, the petitioner Norfolk and Western Railway

was notified by the Office of Workers’ Compensation Pro-

grams, United States Department of Labor, that Mr. White

and others involved in the coal-loading process came within

the coverage of the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U.S.C. §§ 901-950. Because compen-

sation remedies under that Act are “exclusive” under Sec-

tion 5 and “in place of all other liability of such employer,”

3 Sze note 22, infra.

4 Section 5 of the Act, 33 U.S.C. § 905, is quoted in pertinent part at

page 2, supra. This Court has held that the Longshoremen’s Act

6

petitioner railroad filed a motion to dismiss the FELA ac-

tion and thereby sought a determination as to the appro-

priate federal remedy governing its potential liability. After

a hearing, the trial judge granted the motion to dismiss

without opinion.

The Supreme Court of Virginia granted a writ of error

and reversed. That Court held, as was undisputed, that the

railroad was an “employer” within the Longshoremen’s Act®

and that the injury occurred within the “situs” require-

ment of the Act.° It reversed and remanded for a new trial,

however, on the ground that Mr. White did not meet the

“status” requirement of the Act. That is, the Court held that

Mr. White was not a covered “employee” within the statu-

tory definition of a person “engaged in maritime employ-

ment, including any longshoreman or other person engaged

in longshoring operations . . . .”’ Though the case has been

remanded for a new trial, the judgment of the Supreme

Court of Virginia is nevertheless a “final judgment” under

28 U.S.C. § 1257 as interpreted by this Court.®

precludes recovery under the FELA in cases to which the Longshore-

men’s Act is applicable. Pennsylvania Railroad Co. v. O’Rourke, 344

(1980) (1953) ; Nogueira v. N.Y., N.H. @ H.R. Co., 281 US. 128

® See App. 9.

® See Id.

* Section 2(3) of the Act, 33 U.S.C. § 902(3), imposes this require-

ment and is quoted in pertinent part at page 2, supra.

* The applicable principle was stated in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 482-83 (1975), as follows:

Lastly, there are those situations where the federal issue has

been finally decided in the state courts with further proceedings

pending in which the party seeking review here might prevail on

the merits on nonfederal nds, thus rendering unnecessary

review of the federal issue this Court, and where reversal of

the state court on the federal issue would be preclusive of any

7

REASONS FOR GRANTING THE PETITION

The opinion below was rendered on March 4, 1977. Three

months later, on June 17, 1977, this Court decided North-

east Marine Terminal Co., Inc. v. Caputo, 45 U.S.L.W.

4729 (1977), Nos. 76-444 & 76-454. The Caputo case

resolved a conflict among the Circuits over the coverage

of the 1972 Amendments to the Longshoremen’s and Harbor

Workers’ Compensation Act. This petition for certiorari is

sought because the opinion below is inconsistent with the

decision of this Court in Caputo.

The Supreme Court of Virginia regarded as dispositive

the fact that Mr. White was “not actually handling any

cargo, either manually or mechanically” and that he was

therefore “at least one step removed from a realistically sig-

nificant relationship [to the loading of cargo on ships] and

from a direct involvement with the loading of vessels.”

Both the reasoning of the Supreme Court of Virginia and

the authority on which it relied have been undercut by

further litigation on the relevant cause of action rather than

merely controlling the nature and character of, or determining

the admissibility of evidence in, the state proceedings still to

come. In these circumstances, if a refusal immediately to review

the state-court decision might seriously erode federal policy,

the Court has entertained and decided the federal issue, which

itself has been finally determined by the state courts for purposes

of the state litigation.

See also Construction Laborers v. Curry, 371 U.S. 542 (1963) ;

Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555 (1963). This case

differs from Cox only in the obviously immaterial respect that the

issues remaining for litigation here involve federal rather than state

questions. As in Cox, Curry, and Langdeau, however, the petitioner

Norfolk and Western Railway claimed in the Virginia courts a federal

ground that would be preclusive of any further litigation on the rele-

vant cause of action and this federal ground has been presented to and

finally determined by the state courts he purposes of the state litigation.

® App. 13.

8

Caputo. Two of the three principal precedents for the deci-

sion below were vacated and remanded for reconsideration

in light of Caputo."® The third was regarded by the Solicitor

General as wrongly decided" but was not before the Court

at the time of Caputo. More importantly, this Court’s analy-

sis in Caputo plainly contradicts the restrictive view of the

scope of the Longshoremen’s Act adopted by the Supreme

Court of Virginia.

As construed in Caputo, the 1972 Amendments to the

Longshoremen’s Act considerably expanded its coverage.

Caputo involved claims by two employees, neither of whom

1.7.0. Corp. v. Benefits Review Board, 529 F.2d 1080 (4th Cir.

1975), aff'd in part by an equally divided court and rev’d in part on

rehearing, 542 F.2d 903 (1976), cert. granted, judgment vacated, and

case remanded sub nom. Adkins v. 1.7.0. Corp., 45 U.S.L.W. 3839

(1977); Jacksonville Shipyards, Inc. v. Perdue, 539 F.2d 533 (5th

Cir. 1976), cert. granted, judgment vacated, and case remanded sub

nom. P. C. Pfeiffer Co., Inc. v. Ford and Director, Office of Workers’

ree Programs v. Jacksonville Shipyards, Inc., 45 U.S.L.W. 3839

'' Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir.), cert.

denied 45 U.S.L.W. 3254 (1976). The Solicitor General argued in

his brief in the Caputo case, at page 29 n.20, that Weyerhaeuser was

wrong because it terminated coverage of persons who would have been

covered under the Act before its amendment in 1972. This Court

found it unnecessary to address this point in Caputo. See 45 U.S.L.W.

at 4733 n. 25.

There are two additional reasons why Weyerhaeuser is an inapt

precedent for the present case. First, the cases bear no similarity on their

facts. The employee in Weyerhaeuser worked as a “pond man” in an

enclosed portion of a bay. He sorted debarked logs and fed them into

a sawmill. His work had no hint of connection with shipping, long-

shoring, or any related activity. He was simply a participant in a

manufacturing process. By contrast, the least that can be said of Mr.

White is that he engages in physical labor at the scene of ship-

loading activity to enable that process to take place. The second factor

undercutting Weyerhaeuser is that the court limited its construction

of the Act os against the “traditional hazards” of “the perils

of the sea an unseaworthy vessel.” 528 F.2d at 961. This languoge

has been contradicted by the decision in Caputo. Neither of the per-

sons involved there were injured by such hazards.

9

would have been entitled to benefits prior to the 1972

Amendments. Blundo was injured while checking cargo

being “stripped” from a large container. The container had

been unloaded from a ship several days earlier and moved

overland to a different pier. Caputo was hurt while loading

a consignee’s truck some five days after the cargo involved

had been removed from a vessel. This Court held both

workers covered under the amended Act. Comparison of

Mr. White’s activities with those of Blundo and Caputo

makes it plain that he too is covered by the Act.

With respect to Blundo, the Court emphasized Congress’

intent to “adapt the LHWCA to modern cargo handling

techniques” and to include within the Act tasks which are

“clearly an integral part of the unloading process as altered

by the advent” of such techniques.” In Blundo’s case, mod-

ern containerization had shifted much of the longshoreman’s

traditional function to land. Similarly, in Mr. White’s case,

mechanization of bulk cargo loading has changed the char-

acter of work performed by persons who accomplish such

loading. Mr. White’s duties require that he work on, over,

and around the ships receiving coal for export. Plainly, the

employee who operates a shiploader from a cab 60 feet

above the waiting vessel would be engaged in the loading

process as modified by modern cargo-handling techniques.

Mr. White’s work in the electrical room high above the

operator’s cab is just as “clearly an integral part” of that

mechanized loading process. He is exposed to the same

dangers as is the operator, and his work is equally essential

to loading coal. The same holds true for Mr, White’s work

at the Barney dumper house and the BC transfer house.

Both facilities are essential to continuous movement of

coal to waiting vessels. Without Mr. White’s assistance on

12 45 U.S.L.W. at 4735.

10

the scene, the process of loading coal would come to a halt.

Like his co-workers who operate the shiploaders and other

machinery, and like Blundo, Mr. White is performing man-

ual labor in a maritime setting with the objective of moving

cargo on or off a ship.

With respect to Caputo, this Court emphasized the Con-

gressional intent in enacting the 1972 Amendments “to pro-

vide continuous coverage throughout their employment to

these amphibious workers who, without the amendments,

would be covered only for part of their activity.”** Mr.

White falls squarely within this policy. Like Caputo, Mr.

White is an amphibious worker whose function is essential

to the physical process of loading ships. He spends about

one-third of his time in shiploaders extended high above

the deck of a waiting vessel. He also works on a main-

tenance platform suspended over navigable water. He is

required to board ships during the loading process in order

to repair “trimming” equipment on the coai chute and

to board a barge in order to gain access to the electrical

equipment located on Pier 5. In short, Mr. White’s function

is to be present on the scene to insure that the process of

loading coal on ships will be completed. Also like Caputo,

Mr. White would have been covered, without the 1972

Amendments, for only part of his activity. Some of the duties

described above would have come within the protection of

the Act even before the 1972 expansion in coverage. As

this Court explained with reference to Caputo, the Act

should be construed so that persons engaged in the loading

process will not walk in and out of coverage in the course of

a day’s work and be exposed to the “shifting and fortuitous

coverage that Congress intended to eliminate’’* by passage

18 Td.

14 Td. at 4736.

11

of the 1972 Amendments. This reasoning applies with equal

force to Mr. White. It is true, of course, that he does not

physically lift cargo in the mold of the classic longshoreman.

The entire purpose of mechanization is to avoid manual

labor of that type. Mr. White’s work is just as integral

a part of the process of loading cargo and falls just as plain-

ly within the policy of continuous coverage for amphibious

workers who would have been covered for only part of their

activities without the 1972 Amendments.

This suggests an even broader objection to the decision

of the court below. If it were allowed to stand, that decision

would withdraw from the coverage of the Act a substantial

class of employees who enjoyed its protections prior to the

1972 Amendments. Before that date, Mr. White and other

maintenance personnel were entitled to compensation under

the Act if injury occurred on navigable waters, including

any dry dock.”® By its restrictive focus on those who are

“actually handling . . . cargo, manually or mechanically,”**

the decision of the Supreme Court of Virginia would ex-

clude from coverage the entire class of maintenance per-

sonnel, as well as line tenders,"’ deck foremen, and others

who are an integral part of the loading process but who do

18 For example, in Flowers v. Travelers Ins. Co., 258 F.2d 220 (Sth

Cir. 1958), the court upheld an award to a welder injured while

making repairs on a floating dry dock. Other maintenance personnel

hurt on dry docks were compensated under the Longshoremen’s Act

in DeMartino v. Bethlehem Steel Co., 164 F.2d 177 (1st Cir. 1947),

and in Travelers Ins. Co. v. McManigal, 139 F.2d 949 (4th Cir. 1944).

Furthermore, this Court held that a marine railway constituted a “dry

dock” within the statute, so that repair and service personnel hurt there

were also covered. Avondale Marine Ways, Inc. v. Henderson, 346

U.S. 366 (1953).

16 App. 13.

17 Line tenders are electrician’s helpers and others who secure the

ship to the dock in order to prepare for loading.

12

not actually “handle” cargo. This narrowing interpretation

conflicts with the conclusion of this Court in Caputo that

“the language of the Amendments is broad and suggests

that we should take an expansive view of the extended

coverage.”””*

It is important to note that the class of workers that

would be excluded from the Act by the decision in the

court below is not limited to maritime employees of rail-

roads. The exclusion from coverage would extend to main-

tenance and other personnel not actually handling cargo

without regard to the character of their employers. With

respect to non-railroad employees, the decision of the Su-

preme Court of Virginia would revive the very chaos that

the 1972 Amendments were designed to resolve. If such

employees were hurt on the shoreward side of the gangway,

they would be relegated to the haphazard pattern of in-

adequate benefits afforded by state workmen’s compensation

schemes. On the other hand, if such employees were in-

jured on the ship itself, they would have a federal remedy,

although quite a different one than Congress intended. The

maintenance man who is injured on board a vessel may

recover full damages from the vessel’s owner under the

essentially strict liability doctrine of unseaworthiness.” If

the employee were held excluded from the Act, the ship’s

owner could then secure indemnification from the stevedor-

ing employer,” thus resulting in unlimited damages paid by

the employer without proof of fault. This uncertain boun-

dary between state and federal remedies is not the scheme

that Congress intended. For a very substantial class of work-

45 U.S.L.W. at 4734.

® See Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946).

* See Ryan Stevedoring Co., Inc. v. Pan-Atlantic $.S. Corp., 350

US. 124 (1956).

13

ers, therefore, the decision of the Supreme Court of Vir-

ginia would recreate the evils that Congress meant to

eliminate by the 1972 Amendments and that this Court

sought to avoid by its decision in Capute.™

With respect to maritime employees of railroads, the

decision of the court below would create a different but

equally serious problem of disparity. Even if excluded from

the Longshoremen’s Act, Mr. White and other railroad

employees would have a remedy under the FELA in addi-

tion to the state workmen’s compensation statutes and the

admiralty action described above. The result would be dis-

parity of coverage between workers on the same site, labor-

ing to the same purpose, and exposed to the same risks of

injury. Even under the restrictive interpretation of the court

below, those who actually operate the loading machinery

or otherwise “handle” coal would be covered exclusively by

the Longshoremen’s Act. They would enjoy the guaranteed

benefits provided by that statute but would not have an

opportunity to recover unlimited damages under the FELA.

necessary to transfer cargo between land and water trans-

ae Brief of the Solicitor General in Northeast Marine

Terminal Co., Inc. v. Caputo, No. 76-444, at 25. Later, the So-

licitor General argued that the 1972 Amendments “were intended

to create a uniform and adequate system of workers’ compensation for

pations.” Jd. at 35-36. The petitioner argued in the Blundo case that

the test should be “whether at the time of injury the worker was

taking part in ‘activity’... which was being carried out in whole or in

part over navigable waters.” Brief for Petitioner in /nternational Ter-

minal Operating Co., Inc. v. Blundo, No. 76-454, at 17. Mr. White

would seem plainly to come within the Solicitor General’s formulation

and would even seem to come within the narrow tion of the Act

advanced by the petitioner in Caputo and rejected by Court as too

limited.

14

On the other hand, maintenance and other personnel who

do not actually “handle” coal would, according to the Su-

preme Court of Virginia, be excluded from the Longshore-

men’s Act. They could not avail themselves of the generous

benefit schedules provided thereby, but they would have an

opportunity to sue under the FELA for unlimited damages

on proof of negligence. This disparity contradicts one of the

principal purposes of the 1972 Amendments. Congress in-

tended to deal with maritime workers as a class rather than

to relegate similarly situated emJoyees to vastly different re-

medial structures.

The petitioner Norfolk and Western Railway is perfectly

prepared to meet whatever obligations it has to Mr. White

and to other employees who are injured during the course

of the coal loading process, whether it be under the Long-

shoremen’s Act or the FELA. There are reasons of morale,

fairness, and ease of administration, however, that suggest

the propriety of treating similarly situated employees in the

same manner. The Railroad is now in the untenable posi-

tion of not knowing which of two inconsistent federal

remedies applies in this and a series of related cases.” For

*2 The record in this case does not contain references to litigation

involving other employees. It is a matter of public record, however,

that the Norfolk and Western Railway is involved in fifteen additional

cases involving issues similar to the present case. Three cases are

pending before the Fourth Circuit, ten before the Federal District

Court in Norfolk, and two in the state trial courts in Norfolk. Like

the present case, each of these actions was brought under the FELA

for injuries within the administrative guidelines for determining

coverage under the Longshoremen’s Act.

The record in this case also does not contain references to other

employee injuries required to be reported to the Office of Worker's

Compensation Programs by the guidelines supplied to the Railroad. It

is a matter of record in that office, however, that the Railway re-

ported some 96 injuries at the Lambert's Point facility during the

period July 1, 1976, through June 30, 1977. Most of these injuries

15

this reason, the petitioner would much prefer that this

Court grant the petition for certiorari and decide the case

on the merits in order to clarify the appropriate remedial

structure within which the Railroad should act. Petitioner

recognizes, however, that since the decision of the court

below was rendered prior to the decision in Caputo, it is

the normal practice to afford the court below an oppor-

tunity to assess the intervening decision prior to review on

the merits. This Court has entered such orders in four other

cases since Caputo was decided.” In recognition of this

practice, petitioner is therefore secking at least the oppor-

tunity to present to the Supreme Court of Virginia its argu-

ments that the decision below is inconsistent with the subse-

quently expressed views of this Court.

CONCLUSION

The petitioner therefore requests that this Court grant

the petition for a writ of certiorari, vacate the judgment

below, and remand the case for further consideration by

the Supreme Court of Virginia in light of Northeast Marine

were minor and involved no time lost from work. Compensation under

the Longshoremen’s Act has been paid to ten of these employees.

Most of the injuries for which compensation under the Act has been

paid would be excluded from coverage by the Supreme Court of

Virginia opinion. All are indistinguishable from the other claims in

litigation under the FELA. The Railroad’s dilemma is that it does

not know how to treat these cases as they arise.

28 See 45 U.S.L.W. 3839 (1977).

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APPENDIX

RALPH J. WHITE, III

v.

NORFOLK AND WESTERN RAILWAY COMPANY.

Record No. 751407.

Supreme Court of Virginia.

March 4, 1977.

* * *

Before Anson, C.J., and Carrico, Harmon, Porr and

Compton, JJ.

ComPTON, Justice.

In this personal injury action brought under the Federal

Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, we

must decide whether, under the circumstances of this case,

the exclusive remedy is under the Federal Longshoremen’s

and Harbor Workers’ Compensation Act (LHWCA or the

Act), 33 U.S.C. §§ 901-950.

Plaintiff-appellant Ralph J. White, III, filed suit in June

of 1974 in the court below against his employer, defendant-

appellee Norfolk and Western Railway Company (N&W).

During the period of time in question, plaintiff worked as an

electrician in rooms housing electrical equipment at de-

fendant’s Lambert’s Point terminal in Norfolk. Plaintiff

alleged defendant negligently failed to furnish him a safe

place to work and negligently failed to provide him with

protective equipment, and as a result of excessive noise in the

electrical rooms he suffered permanent damage to his hearing

App. 2

and developed a constant ringing in his ears. The FELA

case was tried in November of 1974 and the jury found

for the defendant. Thereafter, the trial judge sustained

plaintiff's motion to set the verdict aside and ordered a

new trial.

In June of 1975, shortly before the scheduled retrial, de-

fendant filed a motion to dismiss on the ground the court

lacked jurisdiction over the subject matter in that plaintiff's

exclusive remedy was under the LHWCA. Following an

evidentiary hearing, the trial court sustained the motion. We

granted plaintiff a writ of error to the July 29, 1975 order

dismissing plaintiff's action.

Enacted in 1927, the LHWCA, like the FELA, is a

federal industrial accident statute. The enactment emanated

from the problems created when some of the States applied

State workmen’s compensation acts to claims of longshore-

men and other harbor workers. 1 M. Norris, The Law of

Maritime Personal Injuries 103 (3d ed. 1975).' These

claims, for the most part, stemmed from injuries aboard

vessels in navigable waters and thus were in the distinctly

Federal field of maritime torts, even though the claims arose

within the territorial boundaries of the States. After the

United States Supreme Court, in a line of pre-1927 cases,

barred these State awards to maritime workers, Congress

enacted this comprehensive maritime workers compensa-

tion law.

In 1972, extensive changes were made in the LHWCA.

Prior to 1972, the Act provided that compensation was

payable only if the claim arose “upon navigable waters”

including “any dry dock” and only if recovery for the dis-

ability or death could not validly be provided by State law

'“The longshoreman, as the name implies, is a shoreside worker

whose principal activity is the loading and unloading of ships’ cargo.”

Norris, supra at 6.

App. 3

through workmen’s compensation proceedings. The Supreme

Court thus construed the earlier act “to reimburse only

injuries seaward of the pier, e.g. on shipboard or other like

structure within the narrow confines of the admiralty tort

jurisdiction.” Stockman v. John T. Clark & Son, Inc., 539

F.2d 264, 270 (1st Cir. 1976). Before the 1972 amendments,

the Act was considered to be a mere “supplement to state

workmen’s compensation laws, designed not to supersede

or improve upon those laws but to fill a gap which the

states were without jurisdiction to fill.” Jd. at 270 (footnote

omitted). Pre-1972 coverage under the Act was “over-

whelmingly situs-oriented.” Jacksonville Shipyards, Inc. v.

Perdue, 539 F.2d 533, 537 (5th Cir. 1976). For example,

coverage was granted to a longshoreman injured aboard

the vessel but denied if his injury occurred several feet from

the ship on the pier. 539 F.2d at 270. In Nacirema Co. v.

Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371

(1969), the claims of three longshoremen were denied when

two were injured and a third killed, on piers permanently

affixed to the shore, while they were attaching cargo from

railroad cars to ships’ cranes. The Supreme Court rejected

the argument that the 1927 Act provided a broader coverage

which was premised on “ ‘status’ of the longshoreman

employed in performing a maritime contract.” 396 U.S.

at 215, 90 S.Ct. at 350. The Court noted:

“Congress might have extended coverage to all long-

shoremen by exercising its power over maritime con-

tracts." [* The admiralty jurisdiction in tort was tradi-

tionally ‘bounded by locality,’ encompassing all torts

that took place on navigable waters. By contrast, ad-

miralty contract jurisdiction ‘extends over all contracts,

(wheresoever they may be made or executed . ..) which

relate to the navigation, business or commerce of the

App. 4

sea.’ Since a workmen’s compensation act combines

elements of both tort and contract, Congress need not

have tested coverage by locality alone. As the text

indicates, however, the history of the Act shows that

Congress did indeed do just that.}” 396 U.S. at 215-16,

90 S.Ct. at 350 (citations omitted ).

The Court also observed that movement of the coverage

line landward should be accomplished by legislative and

not judicial action. 396 U.S. at 224, 90 S.Ct. 347.

The inequities resulting from the fact that coverage under

the Act stopped at the water’s edge prompted Congress in

1972 to enlarge the scope of the Act. See H.R.Rep. No.

1441, 92d Cong., 2d Sess. 10, reprinted in [1972] U.S. Code

Cong. & Admin. News pp. 4698, 4707-08. By enactment

of the 1972 amendments, Congress, inter alia, expanded

the “situs” requirement; it also enhanced the significance of

the “status” requirement by defining the class of persons who

are “employees” entitled to coverage under the Act.

Section 3(a) of the Act sets forth the situs where a

covered claim must occur, and provides in pertinent part

as follows, with the Amendment made in 1972 shown by

italics:

“Compensation shall be payable . . . in respect of dis-

ability or death of an employee, but only if the disa-

bility or death results from an injury occurring upon

the navigable waters of the United States (including

any adjoining pier, wharf, dry dock, terminal, building

way, marine railway, or other adjoining area customar-

ily used by an employer in loading, unloading, repair-

ing, or building a vessel)... .33 U.S.C. § 903(a).

Section 2(3) of the Act defines the status which the em-

ployee must occupy to be covered, and provides as follows,

with the 1972 Amendment iudicated by italics:

App. 5

“The term ‘employee’ means any person engaged in

maritime employment, including any longshoreman or

other person engaged in longshoring operations, and

any harborworker including a ship repairman, ship-

builder, and shipbreaker, but such term does not include

a master or member of a crew of any vessel, or any

person engaged by the master to load or unload or re-

pair any small vessel under eighteen tons net.” 33

U.S.C. § 902(3).

The Act further provides that an employer, defined in the

Act, id. § 902(4), shall be liable for compensation of his

employees, id. § 904, and that such liability shall be exclu-

sive and in place of all other liability of such employer to

the employee. Jd. § 905.

As we turn to the facts, it will become apparent that the

critical question presented by this case is whether plaintiff

was a “person engaged in maritime employment” and thus

an “employee” within the meaning of the Act. To make this

determination, a thorough understanding of the coal-loading

process from beginning to end, and the plaintiff's function as

it relates thereto, is essential; it is also relevant that other

N&W employees performed purely maritime work.

The evidence which was developed during the hearing on

the motion to dismiss is without substantial conflict. N&W

is a rail carrier of coal and operates the Lambert’s Point

facilities, which include railroad yards and two coal piers,

Piers 5 and 6, extending into the navigable waters of the

Elizabeth River, a part of Hampton Roads. Pier 5 is about

1000 feet long, Pier 6 is approximately 1600 feet in length

with a 200-foot dolphin extension. The coal is brought to

Lambert’s Point by rail, to be shipped worldwide, from

mines in West Virginia, Kentucky and Pennsylvania; it is

sent to Norfolk from staging areas in Roanoke and Crewe,

App. 6

but only when a designated ship is scheduled to arrive at

Lambert’s Point to receive it.

When the ship’s arrival time is known, transfer of the

coal from the staging areas to classification or storage yards

at Lambert’s Point is coordinated by N&W. Upon arrival

in Hampton Roads, the vessel stands off Lambert’s Point

until called to the piers by N&W. Defendant arranges with

Curtis Bay Towing Company for tug service to aid in

berthing. One of the tugs employed is owned by N&W and

operated by Curtis Bay to “service” the coal piers exclu-

sively. As the ship approaches the pier designated by de-

fendant’s piermaster, line tenders employed by N&W handle

the lines to secure the ship to the pier. These line tenders

may be shop helpers, helper machinists, helper electricians,

or helpers of any description.

When docking of the vessel is completed, the following

procedure is used to transfer the coal from the storage yards

to the coal piers and thence into the ship’s hold. The loaded

coal cars are brought from the classification or storage yards

to the Barney or hump yard, so named because its tracks are

laid at a 3.5 percent upgrade, by a hump crew composed

of an engineer, a fireman, a conductor and two brakemen.

The 20 or 30 coal cars are shoved by the hump engine into

the yard where the cars’ brakes are applied. Individual cars

are then uncoupled manually upon orders of a conductor

and allowed to roll unassisted down a 1.5 per cent grade

over scales which weigh the cars and through the thawing

chamber to the Barney Pit where the cars are classified ac-

cording to point of origin.

After classification, the cars are pushed to the Barney

dumper house, approximately 425 feet from the head of

Pier 5, where the cars are turned over and the coal shaken

into hopper receiving bins, each of which holds 200 tons of

coal, A series of conveyor belts transfers the coal from the

App. 7

dumper to the piers. The A belt carries the coal from the

hopper to B belt which runs underground to the BC transfer

house approximately 75 feet from the head of Pier 6. The

coal is transferred to C belt which feeds belts D and E

located within shiploader number 1, one of two ship-

loaders located on Pier 6. Shiploader number 2 is fed by a

similar series of belts designated Al, B1, Cl, Dl and El.

A shiploader is a structure, 196 feet in height, affixed to the

pier and operated from a cab 60 feet high, which feeds coal

from the conveyor belts into the ship’s hold by means of a

telescoping chute.

The loading operation is a continuous process from the

time the cars leave the Barney yard until the coal drops

into the ship. During the process, a deck foreman, employed

by N&W is stationed on the vessel. He supervises the

operator of the shiploader, keeps in close touch with the

chief officer and captain of the ship, and specifies the direc-

tion the coal should flow into the ship’s hold.

N&W also provides trimming service, which is the me-

chanical placement of coal in the ship’s hold. The railway

company also owns a floating barge which is used by

electricians and machinists to work on the equipment

around the coal piers.

We now examine the plaintiff's duties and the electrical

functions ca ‘7d on in the rooms in question. Plaintiff

alleged his hez __g loss resulted from his activities in: The

Barney dumper house electrical room, the BC transfer house

electrical room, the two electrical rooms in the shiploaders

on Pier 6, and the Pier 5 motor house electrical room. Elec-

trical equipment in those locations provides the power to

control the loading process from the time the coal cars are

placed on the Barney dumpers until the coal is loaded into

the ships. Plaintiff claims his injury was sustained during a

period of about two years when he was working in the

App. 8

electrical rooms five nights each week. He was originally

employed by N&W in 1969 as a line tender, then entered

an electrical apprenticeship, and in December of 1972 was

assigned by N&W to perform electrical duties in the fore-

going specific areas.

The record shows plaintiff did not operate any of the

machinery during the loading process, but that he main-

tained and repaired the electrical room equipment in the

named enclosed spaces. In the Barney dumper room, the

equipment converted AC power to DC power through a

motor generator which in turn furnished the power and

control to dump the coal from the cars and the power to

move the Barney, which is a mechanical device used to shove

the coal cars onto the dumper. In the BC transfer house

electrical room, the equipment provided electrical genera-

tion and power supply for the B, B1, C and Cl conveyor

belts.

Electrical equipment was also located on Pier 5, which

unlike Pier 6 was not equipped with shiploaders. The Pier

5 electrical equipment raised a single coal car and dumped

the coal onto a pan from which the coal flowed by gravity

through a telescope into the vessel.

Electric power operates the Pier 6 shiploaders. The

electrical rooms are located above the operator’s cab and

are about 113 feet above the deck of the pier. Plaintiff

worked in these rooms and also on exterior maintenance

platforms, which hang partially over the pier and partially

over the water. There were electrical “elements” on the

Pier 6 telescopic chute which prevented the chute from

“going up too high.” Around the bottom of the chute was

a hydraulic system for trimming, controlled electronically.

The chute hung directly in the center of the vessel’s hold

when the ship was being loaded. If the rotating trim equip-

ment malfunctioned, plaintiff would go aboard the ship to

= ee eee ce ee EERE Ae ee ee

App. 9

repair that equipment. When a vessel was not berthed at

Pier 6, metal staging on the pier with an exterior platform

about 25 feet above dock level was swung out over the water

and around the telescopic chute to afford maintenance access

by the electricians to the chute’s electrical equipment.

Clearly, and no issue is raised as to this, N&W is an

“employer” within the meaning of the Act. “Employer” is

defined as “an employer any of whose employees are em-

ployed in maritime employment, in whole or in part, upon

the navigable waters of the United States (including any

adjoining pier, . . .)” Id. § 902(4) (emphasis added). See

Nogueira v. New York, N. H. & H.R. R., 281 U.S. 128, 50

S.Ct. 303, 74 L.Ed. 754 (1930). N&W’s employees who

manned the barge and tended the lines bring the railway

company within the foregoing definition. See Thornton v.

Norfolk @ W. Ry., No. 75-345-N (E.D.Va., mem. order

Dec. 10, 1975) interlocutory appeal denied, No. 75-8433

(4th Cir. March 18, 1976).

In addition, there is no issue that the injury took place

in a situs where a covered claim must occur, within the

meaning of section 3(a) of the Act. Each of the five elec-

trical rooms, two ashore and three on the piers, in which

plaintiff worked were “upon the navigable waters of the

United States,” defined in section 3(a) as “including any

adjoining pier, . . . or other adjoining area customarily

used by an employer in loading, . . . a vessel.” ,

Therefore, because plaintiff was injured in a covered

situs and because N&W is an “employer” bound under the

Act to pay compensation to covered “employees,” the issue,

as we have stated, is whether plaintiff was an “employee”

within the meaning of the Act; specifically whether plaintiff

was a “person engaged in maritime employment” under

section 2(3). We conclude he was not and reverse.

App. 10

On brief, defendant argues that “whether or not a person

works for a stevedore [plaintiff did not], and whether or

not a person belongs to a maritime union [plaintiff did not],

if in his employment he performs duties which are necessary

to, and integral parts of, the loading of cargo upon a vessel,

then such a person is ‘engaged in maritime employment’ and

thus becomes an ‘employee’ as statutorily defined.” N&W

contends “plaintiff's duties of maintaining and repairing the

motor equipment used to generate electricity for operation

of the automatic coal loading apparatus (which he was

doing when allegedly injured), put the plaintiff in a class of

persons ‘engaged in maritime employment.’ ” The company

further urges that:

“If the dumping equipment, conveyor belts and ship-

loaders are customarily used in loading coal into the

vessels—as surely they are—then those employees who

operate and maintain the equipment are engaged in

the loading. The plaintiff's connection with these oper-

ations is not peripheral. He spends his time in the five

locations at the coal piers while the coal is being loaded

into the vessels maintaining the efficiency of the loading

equipment and serving as a ‘trouble-shooter.’ When

trouble occurs, for instance, he stops the operation and

it is not started again except by his action or if the

operation stops because of electrical malfunction it is

not commenced without the plaintiff's involvement. At

times he is located high above and directly over the

ship while coal flows from the belts into the shiploader

and down into the ship’s hold.

“It must be borne in mind also that what generally

may be conceived as loading a vessel—the use of slings

and pallets, the hoisting and lowering by ship’s gear, the

stacking and moving of cartons and bales—is no less

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App. 11

loading because sophisticated equipment and modern

loading techniques are used by different people with

skills of many kinds.”

At the bar, N&W urged us to apply the “functional rela-

tionship” test recently used in Sea-Land Service, Inc. v.

Director, Office of Workers’ Compensation, 540 F.2d 629,

638 (3d Cir. 1976). Defendant says that because plaintiff's

employment involved “working in these motor rooms, all of

his activity was ‘functionally related’ to the loading of coal

on ships; none of his activity was ‘functionally related’ to the

operation of trains or to the operation of a railroad in the

sense of moving cars along rails.”

A close examination of plaintiff's precise duties, and their

relation to the actual loading of the vessels, when considered

with the legislative purpose of the 1972 Amendments, will

demonstrate the fallacy of defendant’s foregoing contentions.

The Act alone does not provide a satisfactory solution

to the question which confronts us, because of the imprecise

meaning of “maritime employment,” “longshoreman,” and

“persons engaged in longshoring operations” as used in the

statute. See J. T. O. Corp. v. Benefits Review Board, 529

F.2d 1080, 1084 (4th Cir. 1975), reheard en b nc, aff'd. in

part by an equally divided court and rev'd in part, 542 F.2d

903, at 905 (1976). Consequently, the legislative history

of the Amendments must be considered to ascertain the in-

tent of Congress. This intent has been aptly summarized

in Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir.

1976), a case in which the sole issue also was whether the

claimant, at the time of the injury, was an employee “en-

gaged in maritime employment” within the meaning of sec-

tion 2(3) of the Act. In holding the claimant was not so

engaged, the court stated:

App. 12

“The 1972 amended prerequisite of ‘maritime em-

ployment’ is a clearly expressed congressional perpetu-

ation of the essential element of admiralty jurisdiction

over the employee. In other words, the fixed federal

compensation is provided in lieu of the uncertainty of

a recovery by an injured ship worker for a maritime

tort. The occupational hazards intended to be guarded

against are the traditional hazards to the ship’s service

employee arising in the course of his employment; 2.e.,

the perils of the sea and an unseaworthy vessel recog-

nized under maritime laws. Accordingly we believe that

to be entitled to the benefits of [the Act], an employee’s

employment must have a realistic relationship to the

traditional work and duties of a ship’s service employ-

ment. Otherwise the clear and unambiguous congres-

sional language of ‘maritime employment’ is nullified

and rendered to read ‘any employment.’

“We hold that for an injured employee to be eligible

for federal compensation under [the Act], his own

work and employment, as distinguished from his em-

ployer’s diversified operations, including maritime,

must have a realistically significant relationship to ‘tra-

ditional maritime activity involving navigation and

commerce on navigable waters,’ with the further con-

dition that the injury producing the disability occurred

on navigable waters or adjoining areas as defined in

§ 903. [ Citations omitted ]” Jd. at 961.

For a comprehensive analysis of the legislative history of

the 1972 Amendments, see J. T .O. Corp. v. Benefits Review

Board, 529 F.2d at 1085-87.

Applying the section 2(3) language defining “employee”

in the light of what we perceive to have been Congress’

purpose when the 1972 Amendments were adopted, we do

App. 13

not believe plaintiff's duties, in the electrical rooms where

the injury allegedly occurred, had a realistically significant

relationship to the loading of cargo on ships. Stated dif-

ferently, when plaintiff was injured he was not directly in-

volved in the loading of coal. See Jacksonville Shipyards,

Inc. v. Perdue, 539 F.2d at 539.

Plaintiff was not actually handling any cargo, either

manually or mechanically, as was the case in the decisions

principally relied on by N&W.? Moreover, plaintiff was not

manipulating (except to test) any of the controls of the

electrical mechanism, which furnished the power for this

automated loading process. Rather, he was only main-

taining the electrical devices on the shore and attached

to the pier, work which is not the traditional work of a

ship’s service employee. Plaintiff was at least one step re-

moved from a realistically significan: relationship and from a

direct involvement with the loading of vessels. The mere fact

some of plaintiff's cumulative injury was sustained out over

the Elizabeth River, while he worked inside the electrical

rooms of the Pier 6 shiploaders, does not convert his status

from that of a railroad electrician to that of a maritime

worker.

For these reasons, we hold plaintiff was not a covered

“employee” within the meaning of the Act. Hence, the

trial court erred in sustaining defendant’s motion to dismiss.

Accordingly, the order dismissing plaintiffs FELA action

2 See, e.g., Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35

(2d Cir. 1976) cert. granted sub nom. Northeast Marine Terminal Co.

v. Caputo, ...... US. , 97 S.Ct. 522, 50 L.Ed.2d 607 (1977), in

which one claimant, a “checker” of cargo, slipped and fell because a

ice on a pier while checking cargo being removed from a container,

which had been unloaded from a ship a few days before at another

pier; and in which another claimant, a “hustler” operator who moved

containers within a terminal, was injured when he placed a container

on a receiving platform on a dock in preparation for loading the

container abo.rd the ship.

App. 14

will be reversed and the case will be remanded for a new

trial.

Reversed and remanded.

JUDGMENT

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 4th

day of March, 1977.

Ralph J. White, ITT, Plaintiff in error,

against Record No. 751407

Norfolk and Western Railway

Company, Defendant in error.

Upon a writ of error to an order

entered by the Circuit Court of the City

of Norfolk on the 29th day of July, 1975.

This day came again the parties, by counsel, and the court

having maturely considered the transcript of the record of

the order aforesaid and arguments of counsel, is of opinion,

for reasons stated in writing and filed with the record, that

the said order is erroneous. It is therefore adjudged and

ordered that the same be reversed and annulled, and the

case is remanded to the said circuit court for a new trial in

accordance with the views expressed in the said written

opinion of this court.

And it is further adjudged and ordered that the plaintiff

in error recover of the defendant in error his costs by him

expended about the prosecution of his writ of error afore-

said here.

App. 15

Which is ordered to be certified to the said circuit court.

A Copy,

Teste:

/s/ H. G. Turner

Clerk

This mandate has not been certified to the court below as

of July 11, 1977.

/s/ H. G. Turner

Howard G. Turner, Clerk