Petitioners Brief — Edmonds v. Compagnie Generale Transatlantique

IN THE

Supreme Court of the U

cyreme Court, U. 2

October Term, 1977 FILED

VEC 29 1972

RECORD NO. 78-479 | |

we |

EL RODAK. JR., CLERK

—States___

STANLEY D. EDMONDS,

Petitioner,

COMPAGNIE GENERALE TRANSATLANTIQUE,

Respondent.

Calvin W. Breit

C. Arthur Rutter, Jr.

BREIT, RUTTER & MONTAGNA

720 Atlantic National Bank Building

415 St. Paul's Bivd.

Norfolk, Virginia 23510

Attorneys for Petitioner

Stanley D. Edmonds

'

=

2: 3.88

Subject Index

Opinions Delivered in

Courts Below. .

Jurisdiction. .

Statutory Provisions.

Question Presented.

Statement of the Case

Summary of Argument .

ArQGuUment. « »« © «6 © @

oT ee

xX

Page

11

49

CITATIONS

Cases

Page

Albert v. Paulo, 552 F2d

1139 (1977) . . . . ° * . . 25

Atlantic Coast Line R.R. v.

Erie Lackawanna R. Co. 406

U.Ss. 340 (1972) : . . . . . 39

Cooper Stevedoring Co. v. Kopke,

417 U.S. 106 (1974) . =. .--« 39

Dodge v. Mitsui Shintaku Ginko

K.K., 528 F2d 669 (1975) cert.

denied, 425 U.S. 944 (1976) 26

Federal Marine Terminals, Inc. v.

Burnside Shipping Cc., 394 U.S.

ee.) ae an ee 40

Griffith v. Wheeling Pittsburgh

Steel Co., 521 F2d 31 (3d Cir.

1975) * * * * * . * * . 7 * 32

Halcyon Lines v. Haenn Ship Ceiling

and Refitting Corporation, 342

Use SBG2 (2992) « 2 © ' 0 ec 14

Howard v. Romen, 442 F. Supp.

1142 (6.D. Ala. 1977) .. -@ 25

Hubbard v. Great Pacific Shipping

Co., Monrovia, 404 F. Supp.

aaSe (D. OF@. £2975) .». «© @ o 26

Cases Continued: Page

Isbrandtsen Co. v. Johnson,

BGS Gels 77S CaBeere « «& 6 24

Jackson v. Lykes Brothers Steam-

ship Co., 386 U.S. 371 (1967) 30

Landon v. Lief Hoegh & Co., Inc.,

5324 FV. 26 736, 763 (26 Cis.

1975), cert. denied, 423 U.S.

Bene -tSSren “es (e 6 e lS ce 8 25-33

Lucas v. “Brinknes" Schiffahrts

ges., 379 F. Supp. 759 (E. D.

Pa. 1974) . . . . . o ° . . 26

Marant v. Farrell Lines, 550 F. 2d

Laan tm eae OTS oe St 19

Northeast Marine Terminal Co., Inc.

v. Caputo, 432 U.S. 249

(1977) * > _ . 7 * . + > > pe

Pope and Talbot, Inc., v. Hawn,

346 U.S. 406 (1953) ... . 14

Beet v¥. 8, 8. Tara, 373 0.8.

oa See & sw 36 eee 30

Ryan Stevedoring Co., v. Pan Atlantic

Steamship Corp., 350 U.S. 124

(1956) - . 7 . . . . . . . 15

Samuels v. Empresa Lineas Maritimes

Argentinas 573 F. 2d 884 (1978)25

Santino v. Liberian Distance Trans-

ports., Inc., 405 F. Supp. 34

Cwems wens Bese) « «© @ e 6 41

Cases Continued: Page

Seas Shipping Co. v. Sieracki,

328 U. 8S. 25 (1946) . .. - 33,37

Shellman v. United States Lines,

Inc., 528 F. 2d 675 (9th Cir.

1975),. cert. denied, 425

Ss @eteee 1207s! * + ee 8 26,42

Shepler v. Weyerhaeuser Co.,

569 P. 2d 1040 (Ore. 1977) 26

Solsvik v. Maremar Compania Naviera,

S. A., 399 F. Supp. 712 (W.D.

iis. Bere vas: 6.6. % 6 2 2 48

United States v. Reliable Transfer

Geiss Sana Ge Be. FOr taser -« 35

Voris v. Eikel, 346 U. S. 328

(1953) . . . . . . . - . . 23

Zapico v. Bucyrus~-Erie Co., 579

y. 26 744 (26 Cis. 2977) .« 25

Statutes

33 U.S.C. Section:

902 (4) - ° . . . . . . . e 29-30

905 . . . . . . . . . . . + 4

Other

74 Am Jur 2d, Torts:

Seeesen Gh sé 6 6 0 & 6 4&8 12

Section 69 . . . . . . . . 13

Continued: Page

Seeesen: FA is 6: .» 2 eo *e Bia 12

Prosser, The Handbook of the Law of

Torts, Section 47, (4th ed.

1971) . . . . 7 . . . . . . 12

Restatement of Judgments .. . 25

Restatement of Torts, Section

880 . _ > * * > .* _ . * . . 13

S. Rep. No. 92-1125, 92d Cong.,

24 Sess. (1972) . «6 « «© @ « 17

IN THE SUPREME COURT

OF THE

UNITED STATES

No. 78-479

STANLEY D. EDMONDS, Petitioner,

Vv.

COMPAGNIE GENERALE

TRANSATLANTIQUE, Respondent.

BRIEF FOR THE PETITIONER

OPINIONS DELIVERED IN THE COURTS BELOW:

Petitioner, a longshoreman, re-

ceived benefits under the Longshoremen

and Harbor Workers' Compensation Act,

33 U.S.C. Section 901 et seq. for in-

juries received aboard defendant's

vessel. Additionally he brought the

instant suit against the defendant

vessel owner for negligence. That suit

was tried with a jury in the United

States District Court for the Eastern

Distict of Virginia, Norfolk Division,

before the Honorable Richard B. Kellam,

District Judge on March 6th, 7th and

10th, 1975. A verdict in the amount

of $97,500.00 was rendered against the

vessel owner (by Order dated September 3,

1975). The Court set aside the verdict

and ordered a new trial.

On December 16, 1975, a new trial

with a jury was had before the Honor-

able John A. McKenzie, District Judge,

and a verdict was returned against the

vessel owner in the amount of $100,000.00.

The amount of the verdict was reduced

to $90,000.00 on the finding of 10%

contributory fault of the plaintiff, and

judgment was entered in that amount by

Order dated March 3, 1976. The matter

was appealed by defendant in the District

Court to the Court of Appeals for the

Fourth Circuit. A panel of the Fourth

Circuit in an Opinion dated May 6, 1977

limited the vessel owner's liability to

"the extent of its fault, in this case

$20,000.00." 558 F2d at 189; App. at

p. 26. Rehearing en banc was granted on

June 3, 1977. The en banc decision of

the Fourth Circuit, decided June 22,

1978, reversed the District Court's en-

try of judgment in the amount of

$90,000.00 and remanded the case for

entry of judgment against the shipowner

for $20,000.00 and for further deliber-

ation on the distribution of $20,000.00

between the longshoreman and the steve-

dore. All pertinent opinions are

included in the Appendix to the Petition

for Certiorari.

JURISDICTION

The statutory provision conferring

jurisdiction on this Court to review the

judgment in question by writ of certiorari

is 28 U.S.C. Section 1254 (1).

The date of the Judgment of the

United States Court of Appeals for the

Fourth Circuit sought to be reviewed is

June 22, 1978. That decision was the

result of the Fourth Circuit's en banc

rehearing of the decision rendered

May 6, 1977, by a panel of that court.

No rehearing of the June 22, 1978 de-

cision has been requested and no extension

of time has been requested.

STATUTORY PROVISIONS

33 U.S.C. Section 905:

Sec. 5.(a) The liability of

an employer prescribed in

section 4 shall be exclusive

and in place of all other

liability of such employer

to the employee, his legal

representative, husband or

wife, parents, dependents,

next of kin, and anyone other-

wise entitled to recover

damages from such employer

at law or in admiralty on

account of such injury or

death, except that if an

employer fails to secure

payment of compensation as

required by this Act, an in-

jured employee, or his legal

representative in case death

results from the injury,

May elect to claim compen-

sation under the Act, or to

Maintain an action at law or

in admiralty for damages on

account of such injury or

death. In such action the

defendant may not plead as

a defense that the injury was

caused by the negligence of

a fellow servant, or that the

employee assumed the risk of

his employment, or that the

injury was due to the con-

tributory negligence of the

employee.

(b) In the event of injury

to a person covered under this

Act caused by the negligence

of a vessel, then such person,

or anyone otherwise entitled

to recover damages by reason

thereof, may bring an action

against such vessel as a third

party in accordance with the

provisions of Section 33 of

this Act, and the employer

shall not be liable to the

vessel for such damages

directly or indirectly and

any agreements or warranties

to the contrary shall be

void. If such person was

employed by the vessel to

provide stevedoring services,

no such action shall be per-

mitted if the injury was

caused by the negligence

of persons engaged in providing

stevedoring services to the

vessel. If such person was

employed by the vessel to pro-

vide ship building or repair

services, no such action

shall be permitted if the

injury was caused by the

negligence of persons en-

gaged in providing ship

building or repair services

to the vessel. The liability

of the vessel under this sub-

section shall not be based

upon the warranty of sea-

worthiness or a breach thereof

at the time the injury occurred.

The remedy provided in this

subsection shall be exclusive

of all other remedies against

the vessel except remedies

available under this Act.

QUESTION PRESENTED

1. Does 33 U.S.C. Section 905(b),

as amended in 1972, permit a reduction

in a vessel owner's liability to an in-

jured longshoreman where the vessel

owner's negligence is joined by con-

curring negligence on the part of the

longshoreman and his stevedore employer?

STATEMENT OF THE CASE

Stanley Edmonds was employed by

Nacirema Operating Company, a steve-

doring company, as a longshoreman to

assist in the unloading of the vessel

SS ATLANTIC COGNAC, owned by the defen-

dant Compagnie Generale Transatlantique,

while the vessel was docked at Portsmouth

Marine Terminals, Portsmouth, Virginia,

on March 3, 1974. While performing his

duties Edmonds sustained serious’ and

permanent injuries when a container

which he was behind rolled back, crush-

ing him against the bulkhead of the

vessel. A mate employed by the vessel

had ordered Edmonds behind the container

to remove a jack which had been placed

there for stability during the voyage

from Europe. A "hustler" operated by

a fellow longshoreman, in clear view of

the mate, had at approximately the same

time circled in the hold of the vessel

and backed into the container causing

it to roll back on Edmonds. The air

brakes on the container were inoperable

because a pet cock had been left open

apparently when the container was loaded

on the vessel in Rotterdam. Jurisdic-

tion in the court of first instance, the

United States District Court for the

Eastern District of Virginia existed

by virtue of Title 28, U.S.C.A. 1332

on the grounds of diversity of citizen-

ship and the amount in controversy.

SUMMARY OF ARGUMENT

Prior to the 1972 Amendments to

the Longshoremen's and Harbor Workers'

Compensation Act, a longshoreman could

sue a third party vessel owner for

negligence or unseaworthiness. The

general common law doctrine of joint

and several liability was applied in

such cases, with the result that the

longshoreman recovered his full damages

from the jointly and severally liable

vessel owner. The fact that a steve-

dore-employer may have been concurrently

negligent did not serve to reduce the

amount a longshoreman could recover from

the vessel owner.

In 1972, Congress, after long

bargaining and negotiating, enacted

substantial revisions to the Longshore-

men's Act. The Amendments removed

seaworthiness as a basis for vessel

owner liability, but left intact the

longshoreman's claim for negligence.

Since the law previously permitted the

longshoreman to recover his full damages

from the vessel, and Congress did

nothing to change that, full recovery

by the longshoreman of his proven

damages is still proper.

There is nothing in the statute

itself or in the legislative history

which abrogates the rule of joint and

several liabil'’ ty. There is nothing in

the statute which approves the concept

of reducing the longshoreman's recovery

where the stevedore employer is concurrently

negligent. The purported inconsistency

in Section 905(b) of the Act alluded to

by the Fourth Circuit does not exist.

That section merely creates in long-

shoremen employed directly by the ship

the same right to sue the vessel owner

for negligence as is enjoyed by long-

shoremen employed by stevedoring

companies.

The Court is dealing here with a

carefully constructed Congressional

scheme which balanced various competing

interests. The Court should not dis-

rupt that delicate balance by creating

a new remedy for the vessel owner. If

any change in the Longshoremen's Act is

necessary, that change should be made

by the Congress.

10

ARGUMENT

Prior to the 1972 Amendments to

the Longshoremen and Harbor Workers'

Compensation Act, it was clear that the

longshoreman could sue a third party

vessel owner. And the longshoreman's

recovery could i grounded upon either

or both of two bases--unseaworthiness

or negligence. Under this Court's

decision in Seas Shipping Company v.

Sieracki, 328 U.S. 25 (1946), a warranty

of seaworthiness ran to a longshoreman

from a vessel owner. The vessel owner

would be liable to the longshoreman for

damages resulting from a breach of that

warranty of seaworthiness. There was

also a cause of action against the vessel

owner for negligence at common law, which

was specifically recognized in the

Longshoremen's Act, even in the pre-1972

days. If the longshoreman successfully

11

proved unseaworthiness or negligence

“by the vessel owner, the plaintiff long-

shoreman recovered his full damages from

that third party defendant.

The common law permitted a plain-

tiff to recover his full damages from

any joint tort feasor. The general

common law rule is that joint tort feasors

are jointly and severally liable for the

whole of any damages caused. Hence, a

tort jointly committed by several tort

feasors may be treated as joint or sev-

eral at the election of the agrieved

party. 74 Am Jur. 2d, Torts Section 61.

Thus one who was injured by the wrongful

act of two or more joint tort feasors

had the option to sue each such tort

feasor separately, or to join any number

less than the whole, or to join them all

as parties defendant in the single

action. Id., Section 71. Prosser, The

Handbook of the Law of Torts, Section 47,

12

(4th Edition 1971). Moreover, the

fact that one joint tort feasor is pro-

tected from liability does not relieve

the other non-protected joint tort feasor

from liability to the person who has

been harmed. 74 Am Jur. 2d, Torts,

Section 69. The Restatement of Torts,

Section 880 provides, "Where two persons

would otherwise be liable for a harm,

one of them is not relieved from liability

by the fact that the other has an abso-

lute privilege to act or an immunity

from liability to the persons harmed."

The courts applied these common

law principles to the third party suit

available to an injured longshoreman.

The courts recognized that a longshoreman

could not bring suit against his em-

ployer because the employer was protected

from suit by the provisions of the Long-

shoremen's Act. However, where a third

party had caused injury to a longshoreman,

13

even if the stevedore employer had been

concurrently negligent, the courts per-

mitted full recovery by the longshoreman

of all his proven damages. The courts

followed the general principles of joint

and several liability as known at common

law.

This Court in Halcyon Lines v.

Haenn Ship Ceiling and Refitting Corpor-

ation, 342 U.S. 382 (1952), refused to

permit a third party vessel owner to

recover from the employer a percentage

of the damages the vessel was required

to pay to a longshoreman, where the

employer had been concurrently negligent.

The court noted that it was the rule at

common law that in the absence of legis-

lation to the contrary, there was no

right of contribution between joint

tort feasors. This court later extended

that rule further in the case of Pope

and Talbot Inc. v. Hawn, 346 U.S. 406

14

(1953). This court refused to permit

a reduction in the vessel's liability

by the amount of compensation payments

made to the longshoreman by the steve-

dore employer, where the stevedore has

been concurrently negligent. The court

characterized any such reduction in the

vessel's favor as the substantial equiv-

alent of contribution, which the court

had declined to require in Halcyon.

This court did not leave the vessel

owner without recourse, however. In

Ryan Stevedoring Company v. Pan Atlantic

Steamship Corporation, 350 U.S. 124

(1956), the court permitted the vessel

Owner to recover over against the steve-

dore employer for damages it had to pay

the longshoreman, based upon a breach

of the stevedore's implied warranty of

workmanlike performance. Thus, the

situation existing prior to the 1972

Amendments was this: A longshoreman

15

could receive from his employer the

relatively low compensation benefits

provided under the Act and could bring

a suit against the third party vessel

owner grounded in either unseaworthiness

or negligence. The vessel owner could

in turn claim against the stevedore em-

ployer for breach of the implied warranty

of workmanlike performance. In short,

the ultimate liability for injuries to

the longshoreman rested upon the

stevedore employer, both in the form of

compensation payments and in damages.

But the longshoreman, in his third party

action, recovered his full proven dam-

ages. The law did not reduce the

longshoreman's damages on account of

concurrent stevedore negligence. The

courts followed the general common law

rule of joint and several liability.

However, in 1972 Congress under-

took a major revision of the Longshoremen's

16

Act. It is therefore appropriate to

consider precisely what Congress had in

mind when enacting the 1972 Amendments.

There were certain specific concerns

which Congress addressed in 1972.

Congress was clearly concerned that the

level of workmen's compensation benefits

payable under the Act was far too low.

Yet Congress recognized that employer's

were not eager to increase those benefits

while the employers bore the ultimate

cost of the litigation which ensued

under Sieracki and Ryan. Congress rec-

ognized the financial burden this created

for employers. Congress was specifically

concerned that these three party law

suits expended stevedore resources and

crowded court dockets, yet resulted in

little actual benefits to injured workers.

Senate Report No. 92-1125, 92d Cong. 2d

Sess. 4, 9.

At the same time, Congress recognized

17

that longshoring was a high risk occupa-

tion, with an injury frequency rate far

above the average for manufacturing

operations. Id. at 2. The Congress

clearly desired to reduce that excessive

injury rate. As the Senate Report stated,

“Permitting actions against

the vessel based on negli-

gence will meet the objective

of encouraging safety because

the vessel will still be

required to exercise the same

care as a land based person

in providing a safe place

to work. Thus, nothing in

this bill is intended to

deregate from the vessel's

responsibility to take

appropriate corrective

action where it knows or should

have known about a dangerous

condition." Id. at 10.

In enacting the 1972 Amendments

Congress received input from represent-

atives of employers, from stevedore

employers, and from shipowners and other

third parties. The legislation that

resulted was a careful compromise be-

tween these competing interests. As

18

Judge Van Dusen accurately noted in his

concurring opinion in Marant v. Farrell

Lines, 550 F2d 142 (3d Cir. 1977),

"It is clear that Congress

gave careful thought to the

statutory scheme of the

Longshoremen's and Harbor

Workers' Compensation Act

(LHWCA) and the changes in

that scheme brought about

by the enactment P.L. 92-576

in 1972. Both Houses of

Congress held extensive

hearings on proposed bills

incorporating different

changes, see Hearings on

S. 2328, 8. 525, 8. i367

Before the Sub. Comm. on

Labor of the Senate Comm.

on Labor and Public Welfare,

92d Cong., 2d Sess. (1972),

Hearings on H.R. 247 H.R.

3505 H.R. 12006, H.R. 15023

before the Sub. Comm. on Labor

of the House Comm. on Edu-

cation and Labor, 92d Cong.,

2d Sess. (1972), and both

Houses wrote extensive

committee reports to explain

the purpose underlying P.L.

92-576, see S.Rep. No. 1125,

92d Cong. 2d Sess. (1972), H.

Rep. No. 1441, 92d Cong. 2d

Sess. (1972). See also

comment, Necligence Standards

under the 1972 Amendments

to the Longshoremen's and

Harbor Workers' Compensation

Act: Examining the Viewpoints,

21 Vill L.Rev. 244 (1975-1976, ."

19

Id. at 147-48, n.1l.

The Senate Report to the 1972

Amendments demonstrates this Congressional

intention to create a comprehensive

scheme for covered employees to provide

adequate financial benefits, preserve

employers' resources to fund those bene-

fits, and encourage safety in the industry.

As the Senate Report summarized,

"The Bill reported by the

Committee meets these ob-

jections by specifically

eliminating suits against

vessels brought for injuries

to longshoremen under the

doctrine of seaworthiness

and by outlawing indemnifi-

cation actions and ‘hold

harmless' or indemnity agree-

ments. It continues to

allow suits against vessels

or other third parties for

negligence. At the same

time, it raises benefits to

a level commensurate with

present day salaries and

with the needs of injured

workers whose sole support

would be payments under the

Act." S. Rep. at 5.

In other words, Congress exacted

a quid pro quo from each of the parties.

20

Longshoremen gave up the right to re-

cover for unseaworthiness, proof of

which was relatively easy under appli-

cable case law. The longshoreman

retained the right to sue the vessel

for negligence under Section 905(b).

In return, Congress protected the long-

shoreman with greatly increased compensation

benefits from the employer.

The shipowner gave up the right to

recover over from the stevedore under

theories of indemnity or warranty for

damages awarded to a longshoreman. In

return, Congress protected the shipowner

from suit by the longshoreman based upon

unseaworthiness. The vessel could be

held liable to the longshoreman only

for negligence.

The stevedore gave up the low com-

pensation benefits structure and was

required to make weekly payments to

longshoremen more in keeping with actual

21

earnings of injured workers. In return,

Congress protected the stevedore from

any recovery over by the vessel owner

under indemnity, warranty, or any

other theory. This carefully constructed

scheme provided additional benefits for

each interested party and created addi-

tional protections for each party. As

is usually the case in a political com-

promise, each side gained something and

each side gave up something. The

interest of each had been balanced in

the legislative process.

However, aside from the changes

undextaken by the 1972 Amendments, Con-

gress left the other statutory provisions

and court interpretations intact. In

short, if Congress did not change the

previously followed rule of joint and

several liability, then we can presume

Congress intended that that rule con-

tinue in force and effect. Thus, the

22

question for this Court to decide is,

what did Congress intend with regard to

the longshoreman's third party suit.

Did Congress intend to reduce a vessel

owner's liability to an injured long-

shoreman where the vessel owner's

negligence is joined by concurrent

negligence of the stevedore employer?

In determining what Congress in-

tended regarding the longshoreman's

third party suit, this Court must bear

in mind the remedial purpose of the Long-

shoremen's Act. The Act is to be

"liberally construed in conformance with

its purpose and in a way which avoids

harsh and incongruous results." Voris

v. Eikel, 346 U.S. 328 (1953); Northeast

Marine Terminal Co., Inc. v. Caputo, 432

U.S. 249 (1977)

Moreover, it is a rule of statu-

tory construction that statutes in

23

derogation of the common law are to be

strictly construed. As this Court said

in Isbrandtsen Co. v. Johnson, 343 U.S.

779, 783 (1952),

"Statutes which invade the

common law or the general mari-

time law are to be read with

a presumption favoring the

retention of long-established

and familiar principles,

except when a statutory pur-

pose to the contrary is evident."

In Isbrandtsen, the Court went on to add

that "maritime legislation. . . should

be construed to make effective its

design to change the general maritime

law so as to improve the lot of seamen."

Id. Similarly, in construing the 1972

Amendments, any construction which alters

the common law to the disadvantage of

longshoremen should not be favored.

Petitioner submits that the Longshore-

men's Act permits the injured longshoreman

to recover his full damages where he is

iniured due to the negligence of the

24

vessel, according to common law princi-

ples of joint and severable liability.

Petitioner submits that any attempt to

reduce tic injured longshoreman's

damages because the stevedore employer

may also have been at fault is contrary

to the Longshoremen's Act, contrary to

the intent of Congress, contrary this

Court's prior decisions, contrary to

the common law, contrary to the Restate-

ment of Judgments, and contrary to the

decisions of the Second, Fifth and Ninth

Circuits. In the Second Circuit, see

Landon v. Lief Hoegh and Co., Inc., 521

F2d 756 (1975), cert. denied, 423 U.S.

1053 (1976); Zapico v. Bucyrus Co., 579

F2d 714 (1978). In the Fifth Circuit,

see Samuels v. Empresa Lineas Maritimas

Argentinas, 573 F2d 884 (1978); Howard

v. Romen, 442 F.Supp. 1142 (S.D. Ala.

1977). See also Albert v. Paulo, 552

F2d 1139 (1977). In the Ninth Circuit,

25

see Dodge v. Mitsui Shintaku Ginko K.K.,

528 F2d 669 (1975), cert. denied, 425

U.S. 944 (1976); Sheliman v. United States

Lines, Inc., 528 F2d@ 675 (1975), cert.

denied, 425 U.S. 936 (1976); Hubbard v.

Great Pacific Shipping Cc., Monrovia,

404 F.Supp. 1242 (D. Ore. 1975). See

also Lucas v. "Brinknes" Schiffahrts

Ges., 379 F.Supp. 759 (E.D. Pa. 1974);

Shepler v. Weyerhaeuser Co., 569 P2d

1040 (Ore. 1977).

Despite the contrary authority,

petitioner here was held to be entitled

to recover only $20,000 of his $100,000

jury verdict against the third party

vessel owner. That jury verdict was

reduced by the degree of contributory

fault of the longshoreman himself (here

10%), resulting in a final verdict of

$90,000. However, in the Fourth Circuit

Opinion here under review, because the

vessel was 20% at fault and the stevedore

26

70% at fault, the shipowner was held to

be liable only for 20% of the amount of

damages found by the jury. The Fourth

Circuit, though recognizing that its

opinion conflicted with the decisions

of other circuit courts, never-

theless concluded that the longshoreman

could recover only that percentage of

his damages which matches the ship's

percentage of negligence.

The Fourth Circuit based its con-

clusion largely on a purported internal

conflict in the language of Section 905(b).

The first sentence of that Section says

that if the longshoreman's injuries are

caused by the negligence of the vessel

then the longshoreman may recover.

"In the event of injury to

a person covered under this

Act caused by the negligence

of a vessel, then such person,

or any one otherwise entitled

to recover damages by reason

thereof, may bring an action

against such vessel as a third

party in accordance with the

27

provisions of Section 33

Of this Aet. « «*

The second sentence of Sub-Section

905(b) says that if the vessel itself

employed the longshoreman, he may not

recover if the injury was caused by the

negligence of persons providing steve-

doring services. "If such persons was

employed by the vessel to provide

stevedoring services, no such action

shall be permitted if the injury was

caused by the negligence of persons en-

gaged in providing stevedoring services

to the vessel."

The Fourth Circuit construes this

language to mean that if there is negli-

gence by those persons providing

stevedoring services (longshoremen), a

vessel-employed longshoreman may not

recover. From this the Fourth Circuit

then concludes that Congress intended

to provide for liability on the ship-

28

Owner only to the extent its fault con-

tributed to the injury, while insulating

the vessel from liability to the extent

the stevedore's fault contributed to the

accident.

Petitioner submits that there is

absolutely no internal inconsistency in

Section 905(b). The language of the

second sentence in Section 905(b) is

merely designed to cover the unusual

situation where the vessel owner em-

ploys the longshoreman directly. Normally,

longshoremen are employed by a stevedoring

company, which in turn contracts to

perform longshoring work for a vessel

owner. Where the vessel owner employs

the longshoreman directly, the vessel

owner is then an employer under the Act.

For, as Section 2(4) of the Act provides,

“The term ‘employer' means

an employer any of whose

employees are employed in

whole or in part upon the

navigable waters of the United

29

States (including any ad-

joining pier, wharf, dry

dock, terminal, buildingway,

Marine railway, or other ad-

joining area customarily used

by an employer in loading,

unloading, repairing, or

building of vessel)".

A vessel owner who employs longshoremen

directly would then be liable for com-

pensation payments under the Act. The

exclusive remedy provision of Section 5

of the Act protects an employer from

suit by an employee for on the job in-

juries. But it was not the intent of

Congress to insulate a vessel owner from

suit by longshoremen injured aboard his

vessel. Therefore, in the unusual case

where the vessel directly employs the

longshoreman, this Court has permitted

suit against that vessel owner as a

vessel owner. Reed v. SS YAKA, 373 U.S.

410 (1963); Jackson v. Lykes Bros. Steam-

ship Co., 386 U.S. 371 (1967). However,

the second sentence of Section 905(b)

30

provides that such a vessel-employed

longshoreman may not base his claim for

damages against the ship on the negli-

gence of others engaged in providing

stevedoring services to the vessel. As

Judge Hall points out in his Edmonds

dissent, "The second sentence is not in

conflict with the first, but simply says

that the plaintiff may not base his

claim against the shipowner upon the

negligence of the stevedore." App. to

Pet. for Cert. A64-A65. This is clearly

the intention of Congress. Congress

meant to provide to all longshoremen the

same third party negligence suit against

vessel owners, whether the longshoreman

was employed by a stevedore company or

by the vessel directly. The second

sentence of Section 905(b) is only

meant to provide for that equality. fThe

Senate Report makes that abundantly

clear when it says:

31

"Accordingly, the bill pro-

vides in the case of a longshore-

man who is employed directly

by the vessel there will be

no action for damages if the

injury was caused by the

negligence of persons engaged

in performing longshoring

services. Similar provisions

are applicable to shipbuilding

or repair employees employed

directly by the vessel. The

Committee's intent is that

the same principles should

apply in determining liability

of the vessel which employs

its own longshoreman or ship-

builders or repairmen as

apply when an independent con-

tractor employs such persons."

S. Rep. at 11-12.

This Congressional intent was

followed by the Third Circuit in

Griffith v. Wheeling Pittsburgh Steel

Company, 521 F2d 31 (34d Cir. 1975).

The Court there concluded,

"The vessel, even a vessel

which is an employer under

the Act, is relieved of liability

for negligence of persons

engaged in providing steve-

doring services, but is not

relieved of liability for its

own ‘owner' occasioned

negligence.” Id. at 43.

The result intended by Congress

32

is clear. Where a shipowner employs its

own longshoremen, that shipowner functions

as an employer under the Act. As such,

that shipowner is liable for compensation

payments under that Act. Yet, the long-

shoreman employed directly by that

shipowner retains his right against the

shipowner to sue for negligence of the

vessel. What Congress did in the second

sentence of Section 905(b) was insure

that that longshoreman could recover

only for the negligence of the ship-

owner as a shipowner. Negligence of the

shipowner as a stevedore would not be a

ground for recovery. The same result

obtains where a shipowner employs a

stevedoring company; if the accident

was caused by the stevedore, the vessel

would be neither negligent nor liable.

Landon v. Lief Hoegh & Co., Inc., 521

F2d at 763.

Part of the difficulty in

33

interpreting Section 905(b) is caused

by the fact that Congress phrased the

second sentence of that section in the

negative rather than in the positive.

If Congress had simply phrased the

second and third sentences of Section

905(b) in the affirmative, as it did the

first sentence, the lack of incon-

sistency would be manifest. If stated

affirmatively, the second sentence of

Section 905(b) would read:

"If such persons was employed

by the vessel to provide

stevedoring services, then

an action shall be permitted

if the injury was caused by

the negligence of persons

not engaged in providing

stevedoring services to the

vessel."

It is surely no different where Congress

has said instead, as the second sentence

of Section 905(b) actually reads:

"If such persons was employed

by the vessel to provide

stevedoring services, no such

action shall be permitted if

the injury was caused by

34

the negligence of persons

engaged in providing steve-

doring services to the

vessel."

Thus, the Fourth Circuit's effort to

support a theory of reducing a longshore-

man's damages on account of stevedore

negligence cannot find support in the

language of Section 905(b).

The Fourth Circuit also supported

its conclusion by reference to this

Court's opinion in United States v.

Reliable Transfer Company, 421 U.S.

397 (1975). The Fourth Circuit relied

on a “trend" towards expansion of the

doctrine of comparative negligence, as

evidenced by the application of compar-

ative negligence in Reliable Transfer.

Apparently the Fourth Circuit believed

it was applying comparative negligence

by reducing the longshoreman's recovery

by the amount of concurrent stevedore

negligence. Such an interpretation

35

finds no support in the legislative

history of the Act. The only mention of

comparative negligence in the legisla-

tive history is the statement that, "The

Committee intends that the admiralty

concept of comparative negligence, rather

than the common law rule as to contri-

butory negligence, shall apply in cases

where the injured employee's own

negligence may have contributed to cause

him the injury." S. Rep. at 12. That

language clearly applies comparative

negligence only to the question of the

plaintiff longshoreman's own fault.

Nowhere does the legislative history

suggest that the negligence of the

stevedore be applied in some fashion

to reduce the longshoreman's recovery.

The Fourth Circuit's reliance on

Reliable Transfer is a misplaced effort

to view the issue in this case solely as

a question of admiralty law. This Court

36

recognized in Reliable Transfer that

in maritime law the judiciary has tradi-

tionally taken the lead in formulating

flexible and fair remedies. 421 U.S.

at 409. The vessel owner in the instant

matter, and the Fourth Circuit in its

opinion, urge as well that it is appro-

priate for the judiciary to fashion a

remedy dealing with longshoremen's

third party negligence suits, which re-

duces the vessel owner's liability to

the longshoreman by the amount of con-

current stevedore negligence. The Court

in Reliable Transfer recognized that no

statutory or judicial precept precluded

a change in the rule of divided damages.

Id. In the instant matter, however,

there is a very carefully constructed

statutory scheme, the result of long

hours of bargaining and compromise in

the Congress. The language in the

legislative history leads to the

37

conclusion that Congress did not intend to

reduce the longshoreman's damages where

the stevedore was concurrently negligent.

Rather, the statute envisions full re-

covery by a longshoreman for all

damages caused by the vessel.

Congress acted to remove from the

longshoreman one of the bases for re-

covery from the shipowner, that is, un-

seaworthiness. The other basis for

recovery, negligence, was left intact.

Where a basis for recovery remains, the

rules governing the amount of the

longshoreman's recovery have not been

changed by the Amendments. Congress

did not repeal the doctrine of joint and

several liability. Accordingly, where

there is liability on the shipowner,

full recovery of the longshoreman's

damages must follow.

This Court long ago established

the judicial precept that under the

38

Longshoremen's Act, reduction of the

vessel owner's liability to the iong-

shoreman on account of some stevedore

negligence was not required. This rule,

created in Halcyon, and refined in

Pope and Talbot, has recently been re-

affirmed by this Court. In Cooper

Stevedoring Co. v. Kopke, 417 U.S. 106

(1974), this Court did allow contri-

bution by a non-employer joint tort

feasor. However, the Court took care

to explain that where an employer is

shielded by the Longshoremen's Act,

contribution by the employer would be

precluded. As the Court noted,

"Halcyon was, and still is, good law

on its facts." Id. at 115. See also

Atlantic Coast Line R.R. v. Erie

Lackawanna R.Co., 406 U.S. 340 (1972).

For this Court to approve the fashion-

ing of a remedy in the nature of that

devised by the Fourth Circuit goes far

39

beyond Reliable Transfer. Reliable

Transfer overruled a discredited

judicial doctrine and brought United

States. Maritime Law into conformity

with the rest of the world, but the

Fourth Circuit cpinion here flies in

the face of the legislative history

and of prior Supreme Court holdings,

and rejects the general common law rule

of joint and several liability.

The Fourth Circuit's remedy

also has severe adverse effects on the

longshoreman. Instead of being made

whole by the combination of compensation

benefits paid without fault and damages

paid on account of third party negligence,

the longshoreman would receive only

part of his jury approved damages.

But still he must repay the compensation

received from the employer, pursuant

to Section 33 of the Act. See wise

Federa] Marine Terminals, Inc., v.

40

Burnside Shipping Co., 394 U.S. 404

(1969).

In short, it is the injured long-

shoreman who bears the brunt of the

inequities of the Fourth Circuit's

remedy. In view of the requirements

that the Act be liberally construed in

favor of the longshoreman and in such

a way as to avoid harsh and incongruous

results, Voris, supra; Northeast Marine

Terminal, supra, the Fourth Circuit

decision is particularly inappropriate.

It is precisely because of this harsh

inequity worked upon the longshoreman--

the party least able to bear the inequity

and the party most free from fault--that

other courts have refused to reduce the

longshoreman's damages on account of

employer negligence. The following

language from Santino v. Liberian

Distance Transports Inc., 405 F.Supp.

34, 35 (W.D. Wash. 1975), quoted with

41

ae

approval in Shellman, 528 F2d at 680,

is instructive. The Court said:

"Permitting a shipowner

to plead the negligence of

the stevedore as an affirm-

ative defense would not

eliminate inequity. It

would shift the inequity

from shipowner to injured

longshoreman. He would

be restricted in his re-

covery as against the

shipowner without acquiring

any offsetting rights under

the Act as against the

stevedore employer."

It is surely in keeping with the human-

itarian purposes of the Act to permit

the longshoreman to be made whole by

recovery of the full amount of his

damages.

Finally, it was the intention of

Congress in the Amendments to abolish

the circuitous third party suits of

pre-1972 days. Congressional displea-

sure with the dissipation of stevedore

resources in the circuitous third party

suits was clear. S.Rep. at 4, 9.

42

Congress intended that the resources

of the stevedore employer be husbanded

for use in providing benefits to in-

jured workers. Thus, Congress acted

to keep stevedores out of any third

party litigation by precluding any

kind of recovery over by the shipowner.

However, the effect of the Fourth

Circuit's remedy is to bring the em-

ployer back into the negligence action.

The employer must participate directly

in the longshoreman's suit, or he will

jeopardize his opportunity to recover

the compensation payments he has made

under the Act. For if the stevedore's

concurrent negligence reduces the long-

shoreman's recovery, there will be less

of a verdict available to repay the

"compensation lien" of the stevedore.

Petitioner submits that, as the

Second Circuit concluded in Zapico v.

Bucyrus-Erie Company, 579 F2d 714 (1978),

43

impairment of the stevedore's compen-

sation lien is also the substantial

equivalent of contribution.

Congress simply did not envision

the stevedore having to participate

in third party suits to prove his own

freedom from fault. No such language

can be found in either the statute or

the legislative history. Yet the clear

result of the Fourth Circuit decision

is to bring the stevedore back into

the litigation. In the ’case at bar, for

example, the shipowner has paid the

amount of the verdict, as assessed by

the Fourth Circuit, into the district

court and has interpleaded the employer/

carrier, and longshoreman, who must

now litigate the question of how the

damages are to be divided. Compagnie

Generale Transatlantigque v. Edmonds,

et al., C.A. No. 78-413-N (E.D. Va.).

Obviously, such additional legal

44

involvement by the stevedore further

dissipates stevedore resources and re-

surects the three party entanglement of

pre-1972 days. If that development is

approved by this Court, then Congress

will have legislated in vain. The

stevedore will be right back where he

was prior to 1972. He will be paying

compensation benefits (at greatly in-

creased rates,) and he will be parti-

cipating in the third party suits in

an effort to safeguard his compensation

lien.

The longshoreman, on the other

hand, has given up his seaworthiness

remedy under the Amendments, and under

the Fourth Circuit interpretation he

will also have lost his negligence

action against the shipowner, as it

existed prior to the Amendments. His

judicially amended negligence remedy

will permit him recovery only of the

45

amount that the shipowner's negligence

contributed to the accident. The re-

sult is that the longshoreman will bear

a burden borne by no other plaintiff

under maritime or land based law.

Plaintiff longshoreman must not only

be prepared to show his own freedom

from contributory fault, he must also

show the freedom from fault of the non-

party employer. However, Congress

intended that the longshoreman be in the

same position as a shore based worker

insofar as third party suits are con-

cerned. As the Senate Report says, "The

Committee intends that on the one hand

an employee injured on board a vessel

shall be in no less favorable position

vis a vis his rights against the vessel

as a third party than is an employee

who is injured on land. ..." S. Rep.

at ll. If that Committee language

means anything, it means that the

46

longshoreman should not be penalized

for being injured aboard a vessel by

imposing this additional burden on him.

The Fourth Circuit's remedy clearly

violates the expressed intent of

Congress by placing the plaintiff

longshoreman in a uniquely disadvantaged

position.

It is important to remember that

the Court here is involved in a question

of statutory interpretation. The

statute in question was the result of

a long negotiating process involving

representatives of workers, employers,

and third parties. It is quite clear

that the result is a politically balanced

statute. This Court must be very care-

ful before making any judicial revisions

in such a creation of the Congress.

This Court is called upon to interpret

the statute as enacted by Congress; it

is for Congress to alter or amend the

47

Act if that be necessary. If the vessel

owner is dissatisfied with the statute

and is dissatisfied with the fact that

decisional law both prior to and sub-

sequent to the Amendments has required

payment of full damages by a concurrently

negligent shipowner, then the Congress

is the proper forum before which the

shipowner should seek redress. This

Court has previously recognized its

limited authority to rewrite the

Longshoremen's Act. Halcyon, 342 U.S.,

at 287. Other lower courts which have

considered the instant question have

also suggested that Congress, not the

courts, should untertake any change

necessary. See Shellman, 528 F2d at

680; Marant, 550 F2d at 551-52 (Van

Dusen J., concurring); Santino, 405

F.Supp. at 35; Solsvik v. Maremar

Compania Naviera, S.A.,399 F.Supp. 712,

714 (W.D. Wash. 1975). Therefore, the

48

Fourth Circuit remedy is inappropriate

and requires reversal by this Court.

CONCLUSION

Wherefore, for the reasons set

forth herein, petitioner prays this

Court to reverse the En Banc split

decision of the Court of Appeals for

the Fourth Circuit and to enter judg-

ment in favor of the petitioner for

$90,000.00.

RESPECTFU SUBMITTED,

C. ARTHUR RUTTER, JR.

Attor Cb box Petiti

Stanley D. Edmonds

49

CERTIFICATE OF SERVICE

I, Calvin W. Breit, certify

that on or before the 2/ ze of

December, 1978, I mailed, postage pre-

paid, 40 copies of this Brief for the

Petitioner to the Clerk, U.S. Supreme

Court, and mailed 3 copies, postage

prepaid, to Charles F. Tucker, Vandeventer,

Black, Meredith and Martin, One

Commercial Place, Virginia National

Bank Bldg., Norfolk, Virginia, _,

counsel for the responden

CERTIFICATE OF SERVICE

I, Calvin W. Breit, certify that

on or before the day of December,

1978, I mailed, postage prepaid, 40

copies of this Brief for the Petitioner

to the Clerk, U.S. Supreme Court, and

mailed 3 copies, postage prepaid, to

Charles F. Tucker, Vandeventer, Black,

Meredith and Martin, One Commercial Place,

Virginia National Bank Bldg., Norfolk,

Virginia, counsel for the respondent,

Thomas D. Wilcox, Esquire, 919 Eighteenth

Street, Washington, D.C. 20006, Attorney

for Amicus Curiae National Association of

Stevedores; Paul S. Edelman, Esquire,

99 Park Avenue, New York, New York 10016,

Attorney for Amicus Curiae American Trial

Lawyers Association; Randall C. Coleman,

Esquire, 1600 Maryland National Bank

Bldg., Baltimore, Maryland 21202, Attorney

for Amicus Curiae American Export Lines,

Inc., et al.; Graydon S. Staring, Esquire,

Two Embarcadero Center, San Francisco,

California 94111, Attorney for Amicus

Curiae Pacific Merchant Shipping Associ-

ation; and 5 copies of the Brief to

David R. Owen, 10 Light Street, Baltimore,

Maryland 21202, Attorney for Amicus

| Curiae Liberty Mutual Insurance Company.

An additional ten (10) day period

for making changes required by the Clerk

was permitted by the Clerk on December

21, 1978.