Amicus Brief — Edmonds v. Compagnie Generale Transatlantique

re

ers Court, U.

Lk ey]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-479

STANLEY D. EDMONDS,

Petitioner,

Vv.

COMPAGNIE GENERALE TRANSATLANTIQUE,

Respondent.

On Writ OF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE,

LIBERTY MUTUAL INSURANCE COMPANY

Davip R. OweEN,

10 Light Street,

Baltimore, Maryland 21202,

Attorney for Amicus

Curiae.

Of Counsel:

SEMMES, BOWEN & SEMMES

Baltimore, Maryland

The Daily Record Co., Baltimore, Md. 21202 Be >

TABLE OF CONTENTS

PAGE

STATEMENT OF INTEREST OF AMICUS CURIAE. ..... 1

CPRTONG FINNEY vsiccsecsncisisscsscsccosdsoscicaccdsossnsas 2

SUMMARY OF ARGUDENT ......cccccsccsccccccsccosccsccccccccase 4

ARGUMENT:

I. Under The Firmly Established Rule Of

Both Maritime And Common Law,

Each Tortfeasor Is Severally Liable For

All Damages Recoverable By The In-

PE einentete Ware Aen Oi aE 5

II. This Court’s Decision In United States

v. Reliable Transfer Co., Inc., 421 U.S.

397 (1975), Has No Relevance Whatever

ae ee CE SN sik Cineieenciccns 7

III. The Legislative History Does Not Sup-

port Respondent’s [Interpretation Of The

PI sea daeidtdcccineditelicht clit esse iidiaboitekunsinigen 15

1. The Committee Hearings ................. 15

2. The Committee Reports .................... 22

IV. The Statutory Language Itself Does Not

Support Respondent’s Interpretation. ... 25

V. Congress Could Not Have Intended To

Limit Employers’ Lien Recoveries As

Well As Burdening Them With The

Increased Cost Of Compensation Bene-

I saids cds conan aosseibictec etnaiecannd sneaks cbsbladetncadits 29

I 32

TABLE OF CITATIONS

Cases

Adkins v. I.T.O. Corporation of Baltimore, 433

Mri WE ciinionsisctspaniidiokscbasaentncdenesilblecdctnoeladlpiicaekicanicaniins 32

ii

PAGE

Aktieselskabet Cuzco v. The Sucarseco, 294 U.S.

RRS RESP Cat Seger Soe acne tnnee =e SPRINT oe on 6

The Alabama and The Penn 92 U.S. 695

| __, ERRELR IERIE "Jets On oe 5 7 ere ERT Re 6

Albert v. Paulo, 552 F.2d 1139 (5 Cir. 1977) ...... 2

Complaint of Allied Towing Corp., 416 F. Supp.

1207 (E.D. Va. 1976), aff'd 580 F.2d 702 (4

CRs RI cchnhintie basesatiictniaducaccddestiieliiintssliemhisaecsantas 26

American Motorcycle Ass’n v. Superior Court, 20

Cal. 3d 587, 146 Cal. Rptr. 182, 578 P.2d 899 12

American Mutual Insurance Co. v. Matthews,

23GB PBe SEB CB Cie. 19GD) ....cccccccccecccccesccseceess 3

Anderson v. Iceland Steamship Co., (1 Cir.

9/29/78) (not yet reported) ............ccccccceeeeeeeeee 30

Atlantic Coastline R.R. Co. v. Erie Lackawanna

R.R. Co., 406 U.S. 340 (1972) ......................... 3

Baccile v. Halcyon Lines, 187 F.2d 403 (3 Cir.

pI OS RESTS er oe SABRES cM Die eC RC CE 18

Baker v. Pacific Far East Lines, Inc., 451 F.

Supp. 84 (N.D. Calif. 1978) 0... eeeeeeeee 26

The Bernina, [1887] 12 P. 58 (C.A.), aff’d [1888] 13

App. Cas, 1 (IL. 1887) ....ccceccccccscccsccceccsssecsesss 6

James R. Butler v. Eucharis Shipping Corp.,

Civil Action No. 78-431-N .........cccccccscsceeseseeeees 29

The Chattahoochee, 173 U.S. 540 (1899) ............. 6

Chavis v. Finnlines, Ltd., 576 F.2d 1072 (4 Cir.

SUI Ciphea lee cs vhcinsinescecendedaedeci alent bikie ncepneiiais 30

Compagnie Generale Transatlantique v. Stanley

Edmonds, Liberty Mutual Insurance Com-

pany, and Nacirema Operating Co., Inc.,

Civil Action No. 78-413-N oo....ccccccccccecsseeeseees 3

Cooper Stevedoring Company, Inc. v. Fritz

Kopke, Inc., 417 U.S. 106 (1974) ................ 3, 5, 6, 10

Crumady v. The J. H. Fisser, 358 U.S. 423 (1959) 23,24

a

ill

Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528

F.2d 669 (9 Cir. 1975), cert. den. 425 U.S. 944

PAGE

ESSE PENOLANESIS oer ney OEE me VF 27

The Etna, 138 F.2d 37 (3 Cir. 1943) .............:..0000. 2

Fathom Expeditions, Inc. v. M/T Gavrion, 402 F.

es EB PM. TTB) ceiccecsesicscscctsveccrens 14

Fitzgerald v. Compania Naviera La Molinera,

394 F. Supp. 402 (E.D. La. 1975) ow... 26

Complaint of Flota Mercante Grancolombiana,

S.A., 440 F. Supp. 704 (S.D.N.Y. 1977) ........ 15

Fogarty v. United States, 340 U.S. 8 (1950). ...... 9

Gay v. Ocean Transport & Trading Ltd., 546 F.2d

as ON ees siinihsitintalcoatntctininiensssnbadotac 30

Griffith v. Wheeling Pittsburgh Steel Corpora-

tion, 521 F.2d 31, cert. den. 423 U.S. 1054

RIE sccececeercienditastentbinccdsadaclasibaiphtels baneunddbiasinbiatiein 10, 25, 26

Halcyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282 (1952) .............. 5, 6, 18, 19, 21, 24

Robert C. Herd & Co. v. Krawill Machinery

Comp., SED UE. FT (RGD occ sscncncscciesscostsisseinns 7

Hogge v. SS Yorkmar, 434 F. Supp. 715 (D. Md.

2» RE AME ct ONE: Be ET PERERA 14

Hurst v. Triad Shipping Co., 554 F.2d 1237 (3 Cir

SPT ‘icickicctash hci cescaaaiglblpacesseinooncitaiinipabivnaiiandaanete 30

Italia Societa v. Oregon Stevedoring Co., 376

Ns I MEINE os onicascsndecseninsnobaaicipasesileanmantbibadiioes 24

Jackson v. Lykes Bros. Steamship Co., 386 U.S.

I ID: icsitsicciiehittiphectitarsanteenh einiaighribacapasadibaitilses 25

Landon v. Lief Hoegh & Co., 521 F.2d 756 (2 Cir.

1975), cert. den. 423 U.S. 1053 (1976) ........... 27

Linehan v. United States Lines, Inc., 417 F.

Bua. CTS CD. Deelah. DTG) x. ,cncccsncccccoiecevessccesesis 14

Lopez v. A/S Svendborg, 581 F.2d 319 (2 Cir.

et Sy CRAG MEE REL AOS ORC TIEMT GIT 27

= PAGE

The Max Morris, 127 U.S. 1 (1890) oo... 9, 23

Munoz v. Flcta Mercante Grancolombiana, 553

fp ok he EE |: y ; ere nent Nemeanneet, 30

Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2

RTPI aaa a RARER ce CEP 26

Northeast Terminal Co., Inc. v. Caputo, 432 U.S.

Se I shah itaa les ncciitcscancseineedicieidindainnatoivtientis 22, 32

Phoenix Ins. Co. v. The Atlas, 93 U.S. 302 (1876) 6

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953)

18, 19, 24, 27

Reed v. SS Yaka, 373 U.S. 410 (1963) .000.0.000000... 25, 26

Ryan Stevedoring Co., Inc. v. Pan Atlantic

Steamship Corp., 350 U.S. 124 (1956) 17,19, 21, 24

Samuels v. Empresa Lineas Maritimas Argenti-

nas, 573 F.2d 884 (5 Cir. 1978) oe 27

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

17, 19, 24

Smith v. M/V Capt. Fred, 546 F.2d 119 (5 Cir.

OPE OI aitiiniistiesteneabcslainchstiRibeiidnndiatnibiiintidaiaaais cn incsisen 26

United States v. Reliable Transfer Company,

Inc., 421 U.S. 397 (1975) .....3, 4, 7, 8, 9, 10, 11, 14, 31

United States v. Wise, 370 U.S. 409 (1962) ........ 9

The Washington and The Gregory, 76 U.S. (9

ee ee SN atk cipievoseciidssvscbins salbiainosietes 6

Wescott v. Impresas Armadoras, S.A., 564 F.2d

SO PT iintbsescchpibeetcematedishncinaieudibesrceisen 30

Stanley M. Wetters v. Moore-McCormack Lines,

Inc., Civil Action No. H-77-858 .00...............00. 29

Zapico v. Bucyrus-Erie Co., 579 Co., 579 F.2d 714

(2 Fey SA URINE ch 00D Aa Ne 27

Law Review Articics

Allbritton, Contribution Among Joint Tortfea-

sors in Non-Collision Maritime Cases, 4 J.

Mar. L. & Com. 425 (1973) ..cccccecccsssssceseeeeee 10

eS ote RETR Geers ery

Vv

Allbritton, Division of Damages in Admiralty —

A Rising Tide of Confusion, 2 J. Mar. L. &

CE ee EN oath lkeMietaitdentnndiaccteadetcclcindiaisets

Brandon, Apportionment of Liability in British

Courts under the Maritime Conventions Act

of 1911, 51 Tul. L. Rev. 1025 (1977) ..............

Coleman and Daly, Equitable Credit: Apportion-

ment of Damages According to Fault in

Tripartite Litigation under the 1972 Amend-

ments to the Longshoreman’s and Harbor-

workers’ Act, 35 Md. L., R. 351 (1976) ..........

Huger, The Proportional Damage Rule in Colli-

sions at Sea, 13 Cornell L. Q. 531 (1928) ....

Kasanin, Cargo Rights and Responsibilities in

Collision Cases, 51 Tul. L. R. 880 (1977) .....

Mole and Wilson, A Study of Comparative

Negligence, 17 Cornell L. Q. 333 (1932) .......

Owen, The Origins and Development of Marine

Collision Law, 51 Tul. L. R. 759 (1977) .......

Prosser, Comparative Negligence, 51 Mich. L.

ig: Se I © cad dit secctica eglittinictecindgaaninsnccdinnee

Robertson, Jurisdiction, Shipowner Negligence

and Stevedore Immunities under the 1972

Amendments to the Longshoremen’s Act, 28

ae Bi Be, Bae CIID. seccinsctvessseictncccscnnnies

Sprague, Divided Damages, 6 N.Y.U.L. Rev. 15

EI Fic iit outa tas iat ald ncincniebinasacenneniageniele

Staring, Contribution and Division of Damages

in Admiralty and Maritime Cases, 45 Calif.

me E-alert aiid ay Ramen

Law Review Articles

Vickery, Special Problems of Personal Injury or

Death Arising Out of Collision Disaster

Cases, 51 Tul. L. Rev. 896 (1977) .........:..s0000

PAGE

10

11

27

g

vi

Texts

PAGE

Schwartz, Comparative Negligence (1974) .9,12, 14, 22

6 Benedict on Admiralty (7th ed. 1969) 39 ......... 11

Statutes

SB UAL. GOON sarcccccssveerisicstsnitnianna 1, 2, 4, 8, 25, 26, 28

BD SEI. QOD cnccisccencinsriviiinssaniiincnulsiesnisacienssiaialigieds 27, 28

Miscellaneous

Hearings on S. 2318, S. 525 and S. 1547 Before

the Subcommittee on Labor of the Senate

Committee on Labor and Public Welfare, 92d

Coma... BE Dame. CITE) ciiioncssritastaivasinasitintakiahen 15, 17,

18, 19, 21, 24

Hearings on H.R. 247, H.R. 3505, H.R. 12006, and

H.R. 1503 Before the Select Subcommittee on

Labor of the Committee on Education and

Labor of the House of Representatives, 92d

+ ee EE fy Se orn 15, 17,

18, 19, 21, 22, 28

Oversight Hearings of Subcommittee on Com-

pensation, Health and Safety of the Commit-

tee on Education and Labor of the H.R., 95th

Gotemt., Bat GO. accnccscsscticcicnisicliciedeeies 30, 31

Report No. 92-1125 of Senate Committee on

Labor and Public Welfare ...............ccccccceeeeeee 22, 23,

Report No. 92-1441 of H.R. Committee on

Education and Labor .0..............0cccccceeeececeeeeeeeee 22

aa eee: eA T=

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-479

STANLEY D. EDMONDS,

Petitioner,

Vv.

COMPAGNIE GENERALE TRANSATLANTIQUE,

Respondent.

On WRIT OF CERTIORARI TO THE UNITED SYATES

CourRT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE,

LIBERTY MUTUAL INSURANCE COMPANY

STATEMENT OF INTEREST OF

AMICUS CURIAE

Liberty Mutual Insurance Company, Amicus Curiae,

files this brief in support of the Petitioner pursuant to

the written consent of the attorneys for the respective

parties, dated September 22, 1978, and filed herein.

Although this amicus was the workmen’s compensation

insurance carrier of the employer, neither it nor the

employer desire to be, have been, or are parties to this

action, it having been the consistent position of this

amicus that under Section 5(b) of the 1972 Amendments

to the Longshoremen’s and Harbor Workers’ Compensa-

tion Act (““LHWCA”) (33 U.S.C. § 905(b)) neither it nor

2

the employer can be forced to become parties. However,

since in the Court below Respondent shipowner and

amicus shipowner’s group advanced arguments which,

if accepted, could adversely affect the rights of this

amicus and others similarly situated, this amicus feels

compelled to use this means of explaining its views to

this Court.

QUESTION PRESENTED

Does Section 5(b) of the LHWCA as amended in 1972

permit a reduction in a vessel owner’s liability to an

injured longshoreman where negligence of the vessel

owner and of the stevedore company employer concur to

cause the injury?

As applied to the facts of this case, the precise

question presented is whether the longshoreman

(Petitioner here) is entitled to recover from the vessel

owner (Respondent) $20,000 or $90,000.

As of December 18, 1978, this amicus had paid out to

or for the account of Petitioner statutory benefits in the

total amount of $49,152.23. Payment of workmen’s

compensation continues at the rate of $184.07 per week.

On the basis of established law, e.g., The Etna, 138 F.2d

37 (3 Cir. 1943); Albert v. Paulo, 552 F.2d 1139 (5 Cir.

1977), this amicus would be entitled to a lien upon

Petitioner’s recovery to the extent of the amount of

benefits paid; but manifestly this cannot be effected

here if the recovery is only $20,000. As the Court belew

noted (A60-61),! it could not pass upon the distribution

of the fund because the employer was not (and could not

be made) a party to the case.

It follows that this Court does not have before it the

direct question of whether the employer/carrier must

take a deduction from the lien or reimbursement on

1 References are to the opinion below as it appears in the

Appendix to the Petition for Writ of Certiorari.

3

account of the employer’s negligence, a theory which

shipowner’s counsel, using the full power of suggestion,

choose to call the “equitable credit’.2 That question is

presented in an interpleader action brought by Re-

spondent shipowner in the United States District Court

for the Eastern District of Virginia, entitled Compagnie

Generale Transatlantique v. Stanley Edmonds, Liberty

Mutual Insurance Company, and Nacirema Operating

Co., Inc., Civil Action No. 78-413-N. This “credit’’,

equitable or otherwise, is not before this Court except to

the extent that it depends for its existence upon the

proposition that the 1972 Amendments abrogated the

long-established rule of maritime and common law

known as the “joint and several liability” of each

tortfeasor. In the instant case the question, more

precisely, is one of “several” liability for, since the

employer has a statutory immunity from tort liability to

the employee, he is not a “tortfeasor” nor is his liability

‘Joint’. American Mutual Insurance Co. v. Matthews,

182 F.2d 332 (2 Cir. 1950); Atlantic Coastline R.R. Co. v.

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

Stevedoring Company, Inc. v. Fritz Kopke, Inc., 417

U.S. 106, 115 (1974). As indicated above, the only

question here is whether the Respondent is subject to

such several liability. It is the position of this amicus

that Respondent is so subject.

2 See, e.g., Coleman and Daly, Equitable Credit: Apportion-

ment of Damages According to Fault in Tripartite Litigation

under the 1972 Amendments to the Longshoreman’s and

Harborworkers’ Act, 35 Md. L.R. 351 (1976). This article is a

strong brief for the credit, long on “equitable” arguments and

short on fundamental law. However, it distorts the legislative

history of the Amendments (thereby contributing to the

erroneous conclusion that Congress in 1972 intended to adopt

by statute the proportionate fault rule promulgated by this

Court for collision cases in 1975 in United States v. Reliable

Transfer Company, Inc., 421 U.S. 397). It almost totally

disregards the basic legal question presented in the insiant

case as to whether the Amendments, with or without an

enactment of proportionate fault, abrogated the rule of joint

and several liability which is deeply embedded in both

maritime and common law.

4

SUMMARY OF ARGUMENT

The 1972 Amendments to the LHWCA reconfirm the

rule, well-established by decisions of this Court and

statutory enactments, that in maritime personal injury

cases the common law defense of contributory negli-

gence gives way to a rule of comparative negligence

whereby the Plaintiff's recovery is reduced in propor-

tion to his own negligence. The Amendments do not,

however, provide for the apportionment of fault

between a negligent third party (whether vessel owner

or otherwise) and a negligent employer covered by the

LHWCA. Furthermore, the Amendments do not abro-

gate the well-established rule of maritime and common

law that an injured person may recover his full

damages from any one of multiple wrongdoers. The

contrary position taken by the Court below is not

supported by the statutory language itself or by the

legislative history. This Court’s decision in United

States v. Reliable Transfer, Inc., 421 U.S. 397 (1975),

decided three years after the Amendments, has no

relevance to their interpretation.

The Amendments have imposed an onerous financial

burden upon employers while at the same time

providing shipowners with new and effective defenses

to suits by employees. Congress could not have

intended further to unbalance the scales in favor of

shipowners by relieving them of any portion of their

traditional liability for the full results of their negli-

gence while at the same time further burdening

employers by reducing their potential lien recoveries. In

any event, Congress has, for over a year, had under

active study the functioning and impact of the 1972

Amendments and can be expected further to amend the

language of Section 5(b) if it should find that the courts

have thwarted its intent, as Respondent shipowner

claims has been done by the Second, Fifth and Ninth

Circuits and by several other district courts which have

5

ruled against shipowners. Petitioner and his supporting

amici, on the other hand, contend that the Court below

effectively rewrote the relevant statutory provisions.

ARGUMENT

I.

UNDER THE FIRMLY ESTABLISHED RULE OF BOTH MARI-

TIME AND COMMON LAW, EACH TORTFEASOR IS SEVERALLY

LIABLE FOR ALL DAMAGES RECOVERABLE BY THE INJURED

PERSON.

No authority need be cited for the common law rule of

several liability; even the Court below recognizes the

viability of the doctrine (A56-57). Although it does not

expressly so state, the Court’s language strongly

implies that it fails to understand that this is and

always has been the rule of admiralty law as well. At

three points in one paragraph and appended footnote,

the Court refers to this as a “common law doctrine” or

“common law principle” and even more pointedly refers

to it (fn.2) as one of “the principles of land-based

negligence law.” Since the instant case involves an

injury on navigable waters, it is governed by the

substantive principles of maritime law, and the same

rule applies both afloat and ashore. Had not the Court

below indicated ignorance of this fact, it might have

been sufficient for us merely to pass the point with

references to two decisions of this Court which

document our statement. Halcyon Lines v. Haenn Ship

Ceiling & Refitting Corp., 342 U.S. 282 (1952); Cooper

Stevedoring Company, Inc., v. Fritz Kopke, Inc., 417

U.S. 106 (1974). In Halcyon a shipowner found 25% at

fault was required to pay 100% of the longshoreman’s

damages. In Cooper this Court stated that the injured

longshoreman could have recovered his full damages

from either the shipowner or from another joint

tortfeasor though each was found to have been 50% at

fault.

6

These decisions are merely the latest in a long line

extending back for more than 100 years. The question

has arisen most frequently in cases of marine collision.

In The Washington and The Gregory, 76 U.S. (9 Wall.)

513 (1870), suit was brought by a passenger injured in a

collision against both the carrying vessel and the non-

carrying vessel. This Court held that he could recover

his full damages from either.* The same result has been

reached in numerous cases of property damage result-

ing from collision. The Alabama and The Gamecock, 92

U.S. 695 (1876) (suit by innocent tow against its tug and

other vessel colliding with tow); Phoenix Ins. Co. v. The

Atlas, 93 U.S. 302 (1876) (suit by cargo on an innocent

vessel against two other vessels each at fault); The

Chattahoochee, 173 U.S. 540 (1899) (suit by cargo

against non-carrying vessel for physical damage

caused in collision with carrying vessel which was

immune from direct suit); Aktieselskabet Cuzco v. The

Sucarseco, 294 U.S. 394 (1935) (suit by owner of cargo

against non-carrying vessel to recover for general

average contrisutions paid to carrying vessel which

was immune from direct suit).

Those being collision cases, contribution was of

course allowed between the joint tortfeasors (each

sharing equally). The important point is that as of 1972

not only was there joint and several liability, but there

was stated to be no contribution at all except in

collision cases. Halcyon Lines v. Haenn Ship Ceiling &

Refitting Corp., supra. Indeed this was confirmed two

years later for personal injury cases like this, i.e. those

subject to the LHWCA, although the over-broad dictum

in Halcyon was narrowed to the facts of the case.

Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra. And

* Under English maritime law also the rule of joint and

several liability in personal injury cases has been applied as

at common law. See The Bernina, [1887] 12 P. 58 (C.A.), aff’

[1888] 18 Ape Cee LHL ais ied

7

the rule of proportionate contribution did not come until

three years after the Amendments. United States v.

Reliable Transfer Co., Inc., supra.

Beyond doubt, then, the rule of full liability for joint

negligence has always been deeply imbedded in the

law. The Court below, at the urging of the shipowners,

has held that Congress by the 1972 Amendments

abrogated this rule as to them. No contention can be

made, however, that the statute contains clear language

to that effect; and the Court noted that: “There is

nothing explicitly enlightening in the legislative

history.” (A57, fn.2.) This situation squarely invokes

the maxim that statutes in derogation of the common

law must be strictly construed. This is particuarly true

where, as here, the construction contended for by

Respondent would grant it a limitation of liability not

heretofore recognized. Robert C. Herd & Co. v. Krawill

Machinery Corp., 359 U.S. 297, 302-305 (1959).

As strictly construed, or indeed as liberally construed,

the language of this statute does not support the radical

new interpretation urged here. Consequently, Respond-

ent’s whole case collapses. It is not entitled to a “credit”

of any kind, either against Petitioner’s recovery, or

against the insurance carrier's reimbursement for

compensation benefits paid. Petitioner should have

judgment for $90,000, and the District Court can then

decide in the interpleader case what lien rights this

amicus has.

II.

THIS COURT’S DECISION IN UNITED STATES V. RELIABLE

TRANSFER CO., INC., 421 U.S. 397 (1975), HAS NO RELEVANCE

WHATEVER TO THE INSTANT CASE.

The Court below accepted the argument of Respond-

ent and of amici shipowners that this Court’s decision

in Reliable establishing a rule of proportionate fault

dictates that Respondent should be liable only for its

8

percentage of the total fault which contributed to

Petitioner’s injury. Injecting Reliable into an analysis

of Section 5(b) of the 1972 Amendments involves a

series of non-sequiturs;

1. It does not follow from a decision of this Court

in 1975 that Congress would in 1972 have been

influenced thereby.

2. It does not follow from the establishment by

this Court of a proportionate fault regime in cases

of property damage from collision or stranding (421

U.S. at 411) that Congress would have adopted

such a rule in cases of personal injury covered by

the workmen’s compensation statute.

3. It does not follow from the establishment of a

proportionate fault rule for the non-statutory

general maritime law that this Court should

impute the same intent to Congress in enacting

legislation which purports to cover its field.

4. Even if Congress had intended to provide for

proportionate fault as between shipowner and

employer, it does not follow that it intended to

abolish the doctrine of joint and several liability to

third parties.

The shipowners pressed the Court below to apply to

this case the decision in Reliable Transfer. We submit

that their argument, which will presumably be repeated

here, turns legal history upside down. Let us commence

by laying out the precise holding in Reliable: in a

collision or stranding where the two vessels (or a vessel

and a shore station) are both at fault, their rights inter

sese to recover for property damage are based upon

proportionate fault rather than upon equal division.

The case had nothing whatsoever to do with the

liability of either to a third party, for either property

damage or personal injury.

Since manifestly a 1975 decision could not have been

written into a 1972 statute, the Court below had to

‘A statute must be construed in the light of events

contemporaneous with, and not subsequent to, its enactment.

9

resort to the suggestion that in 1972 there was a “trend”

to expand the doctrines of comparative negligence,

citing Reliable (A58). Of course, state legislatures and

Supreme Courts have been increasingly adopting rules

abolishing contributory negligence as a complete

defense and substituting a percentage reduction of

recovery. See V. Schwartz, Comparative Negligence

(1974) 1-29. Sometimes, but not always, provision is also

made for contribution among joint tortfeasors; and

sometimes, but not always, this is on a percentage

basis. Whatever the “trend” may have been in automo-

bile law, it was not reflected in American maritime law,

at least before 1975, except of course that traditionally

the plaintiffs contributory negligence in a case of

personal injury or death merely reduced his recovery

percentagewise. The Max Morris, 137 U.S. 1 (1890).

Because of the international nature of maritime law,

it is significant that in England and continental

countries there had indeed been a strong trend toward

percentage apportionment of fault in all maritime

cases, commencing in France in the 1870’s and gaining

its greatest momentum with the Brussels Collision

Convention of 1916. See Owen, The Origins and

Development of Marine Collision Law, 51 Tul. L.R. 759,

792-798 (1977). This marked difference between develop-

ments here and abroad prior to Reliable Transfer was

the theme of numerous law review articles in which the

authors decried the absence of any trend toward

apportionment (except, of course, as between plaintiff

and defendant in personal injury and death cases). See

Huger, The Proportional Damage Rule in Collisions at

Sea, 13 Cornell L.Q. 531 (1928); Sprague, Divided

Damages, 6 N.Y.U.L. Rev. 15 (1929); Mole and Wilson,

A Study of Comparative Negligence, 17 Cornell L.Q.

333 (1932); Staring, Contribution and Division of

See United States v. Wise, 370 U.S. 405, 411 (1962); Fogarty v.

United States, 340 U.S. 8, 13 (1950).

10

Damages in Admiralty and Maritime Cases, 45 Calif. L.

Rev. 304 (1957); Allbritton, Division of Damages in

Admiralty — A Rising Tide of Confusion, 2 J. Mar. L. &

Com. 323 (1971).

The writings of the two recognized admiralty scholars

Staring and Allbritton are particularly notable because

they wrote after Halcyon and before the 1972 Amend-

ments. Staring referred (p. 34C) to the absence of a

proportional damage rule in collision cases as “the

great anomaly of the maritime law applied in America

today.” Allbritton noted (p. 338) that “the courts have

refused to adopt a theory that would assign percentages

of fault among multiple defendants.” As late as 1973 it

was still being debated whether there was any right to

contribution in non-collision cases; and there was no

suggestion that, if so, it was on a percentage basis. See

Allbritton, Contribution Among Joint Tortfeasors in

Non-Collision Maritime Cases, 4 J. Mar. L. & Com. 425

(1973).

Reliable Transfer, of course, changed all of that in

collision cases. Evidence was not long in coming

thereafter that percentage apportionment among multi-

ple defendants in non-collision personal injury cases

might follow Reliable. See, e.g., Griffith v. Wheeling

Pittsburgh Steel Corporation, 521 F.2d 31, 44, cert. den.

423 U.S. 1054 (1976). Before Reliable, however, there

was no such “trend” in the maritime law. For these

reasons, we submit, attempts to impute to the 1972

Congress an intent to adopt a rule of proportionate

contribution are totally without justification.®

There is another more subtle reason why Reliable

Transfer does not help the shipowners here. It stems

° As late as 1974, this Court specifically refrained from

determining whether contribution among multiple defend-

ants in such personal injury cases should be on an equal

basis or on a percentage basis. See Cooper Stevedoring

Company, Inc. vu. Fritz Kopke, Inc., 417 U.S. 106, 108, fn. 3.

11

from the language of the Brussels Collision Convention

of 1910, the relevant provisions of which are as follows:

“Art. 4. If two or more vessels are in fault the

liability of each vessel shall be in proportion to the

degree of the faults respectively committed. Pro-

vided that if, having regard to the circumstances, it

is not possible to establish the degree of the

respective faults, or if it appears that the faults are

equal, the liability shall be apportioned equally.

The damages caused either to the vessels, or to

their cargoes, or to the effects or other property of

the crews, passengers, or other persons on board,

shall be borne by the vessels in fault in the above

proportion without joint and several liability

toward third parties.

In respect of damages caused by death or

personal injury, the vessels in fault shall be jointly

as well as severally liable to third parties, without

prejudice to the right of recourse of the vessel

which has paid a larger part than that which in

accordance with the provisions of the first para-

graph of this article she ought ultimately to bear.”

6 Benedict on Admiralty (7th ed. 1969) 39.

This Court in Reliable Transfer quoted from Article 4 of

the Convention (421 U.S. at 403) and ultimately (id. at

411) stated its holding in language virtually identical

with that of the Convention. The same Article contains

a provision for personal injury and death claims and

specifically preserves the rule of joint and several

liability, subject, of course, to the right of contribution

proportionate to fault. See Brandon, Apportionment of

Liability in British Courts under the Maritime Conven-

tions Act of 1911, 51 Tul. L. Rev. 1025, 1028 (1977).

The point is that a rule of joint and several liability is

perfectly compatible with a rule of proportionate fault.

Thus, even if Congress had spelled out in the 1972

Amendments a proportionate fault rule, shipowners

would have remained severally liable to employees

unless the statute had also expressly abolished several

12

liability, which of course it did not do. This has been the

result in every case in which the question has been

presented. Schwartz, Comparative Negligence (1974) at

253; American Motorcycle Ass’n v. Superior Court, 20

Cal. 3d 587, 146 Cal. Rptr. 182, 578 P.2d 899, an en banc

decision of the Supreme Court of California in 1978.

Coming from the court which is widely known for its

advancement of new tort theories, this decision is

sufficiently illustrative for our purposes and merits full

quotation (20 Cal. 3d 586-590, 146 Cal. Rptr. 187-190, 578

P.2d 904-907):

“Under well-established common law principles, a

negligent tortfeasor is generally liable for all

damage of which his negligence is a proximate

cause; stated another way, in order to recover

damages sustained as a result of an indivisible

injury, a plaintiff is not required to prove that a

tortfeasor’s conduct was the sole proximate cause

of the injury, but only that such negligence was a

proximate cause.

* ee

_ In the concurrent tortfeasor context, however, the

‘joint and several liability’ label does not express

the imposition of any form of vicarious liability,

but instead simply embodies the general common

law principle, noted above, that a tortfeasor is

liable for any injury of which his negligence is a

proximate cause. Liability attaches to a concurrent

tortfeasor in this situation not because he is

responsible for the acts of other independent

tortfeasors who may also have caused the injury,

but because he is responsible for all damage of

which his own negligence was a proximate cause.

When independent negligent actions of a number

of tortfeasors are each a proximate cause of a

single injury, each tortfeasor is thus personally

liable for the damage sustained, and the injured

person may sue one or all of the tortfeasors to

obtain a recovery for his injuries; the fact that one

of the tortfeasors is impecunious or otherwise

immune from suit does not relieve another tortfea-

13

sor of his liability for damage which he himself has

proximately caused.

* * kK *

As we have already explained, a concurrent

tortfeasor is liable for the whole of an indivisible

injury whenever his negligence is a proximate

cause of that injury. In many instances, the

negligence of each of several concurrent tortfeasors

may be sufficient, in itself, to cause the entire

injury; in other instances, it is simply impossible to

determine whether or not a particular concurrent

tortfeasor’s negligence, acting alone, would have

caused the same injury. Under such circumstances,

a defendant has no equitable claim vis a vis an

injured plaintiff to be relieved of liability for

damage which he has proximately caused simply

because some other tortfeasor’s negligence may

also have caused the same harm. In other words,

the mere fact that it may be possible to assign

some percentage figure to the relative culpability of

one negligent defendant as compared to another

does not in any way suggest that each defendant’s

negligence is not a proximate cause of the entire

indivisible injury.

x * Kk *

Indeed, although [co-defendant] fervently asserts

that the joint and several liability concept is totally

incompatible with a comparative negligence re-

gime, the simple truth is that the overwhelming

majority of jurisdictions which have adopted

comparative negligence have retained the joint and

several liability doctrine. As Professor Schwartz

notes in his treatise on comparative negligence:

‘The concept of joint and several liability of

tortfeasors has been retained under comparative

negligence, unless the statute specifically abolishes

it, in all states that have been called upon to decide

the question.’ [citation omitted]. [Co-defendant] has

not cited a single judicial authority to support its

contention that the advent of comparative negli-

gence rationally compels the demise of the jeint

and several liability rule. Under the circumstances,

we hold that after Li [the California case establish-

14

ing comparative negligence], a concurrent tortfea-

sor whose negligence is a proximate cause of an

indivisible injury remains liable for the total

amount of damages, diminished only ‘in proportion

to the amount of negligence attributable to the

person recovering.’” (Italics supplied)

The post-Reliable personal injury and death cases

have continued to apply the rule of joint and several

liability while apportioning fault among defendants.

Hogge v. SS Yorkmar, 434 F. Supp. 715, 728 (D. Md.

1977);° Linehan v. United States Lines, Inc., 417 F.

Supp. 678, 694-695 (D. Dela. 1976), mod. 559 F.2d 1208 (3

Cir. 1977); Fathom Expeditions, Inc. v. M/T Gauvrion,

402 F. Supp. 390, 393-394 (M. D. Fla. 1975); Vickery,

Special Problems of Personal Injury or Death Arising

Out of Collision Disaster Cases, 51 Tul. L. Rev. 896, 932-

935 (1977).

Reverting now to Reliable and the Collision Conven-

tion, we draw the Court’s attention to the second

paragraph of Article 4 which provides for damage to

cargo and other property. In this instance the joint and

several liability rule is expressly abrogated, thus

expressing in eight clear words what the shipowners

here contend that Congress implied in the 1972

Amendments. Thus the Convention satisfied Professor

Schwartz’s criterion that the concept of joint and

several liability is retained under a proportionate fault

regime “unless the statute specifically abolishes it”.

Comparative Negligence at 253. The ultimate proof of

the continued, complete viability of the joint and

several liability rule in American maritime law appears

in the post-Reliable decisions to the effect that this

° Hogge is particularly in point because there one of the

defendants was permitted to limit its liability, thus present-

ing a situation analogous to statutory immunity (as in the

instant case), bankruptcy, inability to effect service of

process, etc., all of which bring the joint and several liability

rule into sharp focus.

15

Court did not adopt this section of the Convention, did

not overrule the Chatiahoochee, supra, and did not

abrogate the joint and several liability rule even in

cases of damage to innocent cargo. See Kasanin, Cargo

Rights and Responsibilities in Collision Cases, 51 Tul.

L.R. 880, 888 £n.63 (1977); Owen, supra, n.3, at 797-798,

804-806; and cases cited in said articles plus Complaint

of Flota Mercante Grancolombiana, S.A., 440 F. Supp.

704, 724-725 (S.D.N.Y. 1977).

III.

THE LEGISLATIVE HISTORY DOES NOT SUPPORT

RESPONDENT’S INTERPRETATION OF

THE STATUTE.

1. The Committee Hearings

During May and June, 1972, the Subcommittee on

Labor of the Committee on Labor and Public Welfare of

the United States Senate (92d Cong. 2d Sess.) held

hearings on S. 2318, S. 525, and S. 1547 (843 pages)

(hereinafter cited as Senate Hearings). Thereafter, in

June and July, 1972, the Select Subcommittee on Labor

of the Committee on Education and Labor of the House

of Representatives (92d Cong. 2d Sess.), held hearings

on H.R. 247, H.R. 3505, H.R. 12006, and H.R. 15023 (332

pages) (hereir fter cited as House Hearings). From

these hearings emerged the 1972 Amendments. Conse-

quently, it is essential to search this public record for

any evidence of the now alleged Congressional intent to

limit the liability of shipowners, in suits by covered

employees, to the shipowners’ percentage of the total

fault contributing to the injuries.

Not even shipowners now contend that the hearings

provide any direct evidence to support their position.

This is perhaps not surprising in view of the fact that

shipowners took no part in the hearings. A great many

witnesses testified and/or submitted written state-

ments, the total of which comprises 1,175 pages. These

16

were Senators and Congressmen, representatives of the

Department of Labor, representatives of labor unions,

representatives of bar associations of plaintiffs’ attor-

neys, employers of all types of waterfront labor and

their associations and committees, and insurance

carriers of such employers. Conspicuous by their

absence were representatives of shipowners, shipowner

associations, and shipowners’ insurance underwriters.

In view of the subsequent controversy raised by

shipowners as to the impact of the Amendments upon

their rights and defenses (as exemplified by this case),

it would seem logical to find in the hearing record some

proposal by shipowners of the positions which they now

espouse. This would have added some credibility to

their present contentions as to the intent of the two

Committees. Conversely, their failure to participate in

the legislative process, while in no way subject to

criticism, does make it impossible for Respondent and

its supporting amici to track their contentions back to

the legislature.

In this connection, there is relevance in the remark of

the lower court: “Before 1972 the exposure of ships to

liabilities for injuries to longshoremen was compara-

tively slight except insofar as reparations for such

injuries occasioned higher stevedoring costs.” (A52).

Unquestionably the exposure of employers was “com-

paratively” much greater than that of shipowners. But,

if the latter’s exposure was only “slight”, there can be

no presumed intent on the part of Congress to legislate

a radical new defense in favor of shipowners. Rather,

the logical inference from this is that Congress

intended to protect employers by fortifying their rights

and defenses as set forth in the then-existing statute.

Thus, the quoted statement of the Court below is

inconsistent with its own conclusion and actually

supports the position taken in this brief.

— ae

17

The key to the whole situation was the overruling of

Ryan Stevedoring Co., Inc. v. Pan Atlantic Steamship

Corp., 350 U.S. 124 (1956), and the statutory restoration

of the employer’s “exclusive liability” under Section 5 of

the Act. If the employer could be relieved of the Ryan

burden, he could agree to higher benefits. (Benefits had

not been increased since 1961 because employers could

not afford the double exposure.) Given higher benefits,

employees could relinquish their rights to recover from

shipowners for unseaworthiness awarded them in Seas

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

hearings were devoid of any sentiment for improving

the shipowners’ position as such (or for weakening it

either) — only for abolishing their liability to harbor

workers for unseaworthiness, which would in turn

make it feasible to overrule Ryan, which would in turn

break the impasse between employers and employees.

The record is replete with examples of such testi-

mony, of which that of the lead-off witness, Secretary of

Labor Hodgson, is typical. Senate Hearings 28-31. The

AFL-CIO representative referred to “circular liability”

as being “the big problem at this point”. House

Hearings 284. A leacing representative of stevedores

called it “the most serious problem in the longshore

industry” which “commands paramount consideration

before any decision can be reached regarding improve-

ment in the benefits of the Longshore Act”. Senate

Hearings 277. A representative of an ad hoc committee

of all the major port associations of the United States

said that “the longshore compensation system is in

crisis, a crisis that is steadily worsening. This crisis is

caused by the proliferation of ‘third party’ or ‘circular

liability’ law suits”. Senate Hearings 724. A repre-

sentative of west coast stevedores said: “The steadily

increasing incidence of third party suits is, to my mind,

at least, the most alarming and threatening problem

facing our industry.” Senate Hearings 632.

18

Thus, the current argument for improving the

position of the shipowner at the expense of the

employer is diametrically opposite to the purpose and

intent of Congress. The Committees were thoroughly

aware of such rights and defenses as employers then

retained under the existing law. First, they knew that

the shipowner could not get contribution from the

employer on any basis, percentage, equal, or otherwise,

because this Court had said so in Halcyon (specifically

cited by a witness representing plaintiffs’ trial lawyers,

House Hearings 152). Secondly, they knew that the

employer was entitled to a lien on the employees’

recovery to the extent of all statutory benefits thereto-

fore paid. Senate Hearings 30 (Secretary Hodgson), 354;

House Hearings 48 (Secretary Hodgson), 119, 135, 158.

They also knew that a reduction of the employers’ lien

would be “the substantial equivalent of contribution”

because this Court had said so. Pope & Talbot, Inc. v.

Hawn, 346 U.S. 406, 412 (1953). This Court had also

made this clear in Halcyon when it reversed the

decision of the Court of Appeals granting the shipowner

“an equitable adjustment” against the lien. Baccile v.

Halcyon Lines, 187 F.2d 403, 405 (3 Cir. 1951).

The hearing record demonstrates that the objective

was not, as Respondent here argues, to give the

negligent shipowner a new defense to the employees’

claim to damages and to the employers’ claim to a lien,

when the employer was also negligent. The objective

was to guarantee such rights and defenses as the

employer then had under the statute and under

Halcyon and Pope & Talbot. In particular, the need was

to protect the employer from the “end around play” of

Ryan.’ This culminated in the new protective language

of Section 5(b) which insured that the shipowner would

7 See, e.g., Senate Hearings 28-31, 174, 190, 209, 258-292,

621-625, 626-631, 632-639, 640-642, 657, 661, 722-748, 785-786,

791-792. House Hearings 47-50, 71, 81-86, 91-93, 243.

19

have no right of indemnity or contribution “directly or

indirectly” and that the employers’ right of full lien

reimbursement would be guaranteed. This would fully

implement Halcyon and Pope & Talbot, would eradicate

the Ryan doctrine, would solve the problem of circular

liability, and would clear the way for an increase in

benefits to the employees.

Various suggestions were made with respect to third

party suits against shipowners. At one extreme, the

Administration, through Secretary Hodgson, proposed

abolishing them entirely, whether based upon unsea-

worthiness or negligence (Senate Hearings 38; House

Hearings 50), as did a prominent representative of

stevedores. Senate Hearings 273, House Hearings 117-

118. At the opposite extreme representatives of plain-

tiffs’ lawyers advocated leaving them intact as under

Sieracki. Senate Hearings 354, 370-372; House Hearings

136. A representative of the shipyard industry, Ralph K.

Hartman, advocated the middle ground of abolishing

suits for unseaworthiness but preserving to employees

the right to recover for negligence. Senate Hearings 174-

175, 188-191, 206-210; House Hearings 71-72, 78-79. This

was accepted enthusiastically by both Committees

(Senate Hearings 174-176; House Hearings 72, 79) and

ultimately became the new Section 5(b).

This raises the key question of whether in the course

of these 1,175 pages of testimony there was any

discussion of how to handle the situation where both

shipowner and employer were negligent. The logical

place to commence this search is in Mr. Hartman’s

testimony. In fact, he made no reference whatsoever to

apportioned fault or damages, as is evident from a full

quotation of the relevant portion of his testimony

(House Hearings 71):

“J will not summarize the rights of injured

seamen, longshoremen, and ship repair yard

workers except to say there is a logical basis for the

20

granting of immunity to a shipowner subjected to a

liability due to an unseaworthy condition solely

created by a stevedore or ship repair yard contrac-

tor. In these cases, the circuity of action arises with

the result that the stevedore and ship repair yard

contractor have a dual liability.

Clearly this is a situation that is contrary to the

original intent of the exclusive remedy provisions

of the Longshoremen’s Act, and, because of the

greatly added burden it places upon stevedores and

ship repair yard contractors, should be corrected.

On the other hand, there do not appear to be any

compelling reasons to eliminate the rights and

remedies of longshoremen and ship repair yard

workers when injured as a result of the negligence

of shipowners.

To abrogate this right, without the longshoremen

or ship repair yard workers receiving a quid pro

quo from the responsible third party, would, I

suggest, be morally wrong and may raise a

question of possible violation of the due process

clause of the Constitution.

The reestablishment of the exclusive remedy

provision of the act can, with due regard for our

employees, be accomplished by removing the

warranty of seaworthiness as a basis for determin-

ing the liability of ships and shipowners (other

than in claims by crewmembers), as was proposed

in H.R. 207 in 1961, a copy of which is attached

hereto.

The provisions in that bill had the effect of

retaining all the injured workers’ traditional

remedies except for the seaworthiness warranty as

applied to longshoremen and ship repair yard

workers (in itself a remedy which had not existed

prior to 1946), and removing, for practical pur-

poses, the dual liability of stevedores and ship

repair yard contractors.

It is suggested that the intended and sorely

needed relief can be accomplished by an amend-

ment conforming to H.R. 207.”

21

This statement also appears at House Hearings 78-79

and Senate Hearings 174, 190-191, 209-210. It is

manifest from Mr. Hartman’s use of the words “solely

created by a stevedore”, appearing five times in the

record, that he was suggesting the elimination of the

vicarious liability of shipowners for the acts or

omissions of employers. The converse seems equally

clear, namely, that he would retain the full liability of

shipowners for their own acts or omissions, as pres-

cribed by established case law, notably Halcyon. The

“quid pro quo” to which he referred was the preserva-

tion of the negligence cause of action in consideration

for the elimination of vicarious liability.

Only one witness raised the question of apportion-

ment as between shipowner and employer, this being

Mr. David B. Kaplan, representing the American Trial

Lawyers Association, whose members represent plain-

tiffs in personal injury suits. Senate Hearings 354-355,

373, 377; House Hearings 136-137, 148. Mr. Kaplan's

suggestion was, however, made in a context entirely

different from that now existing. His proposal was to

retain Sieracki and the shipowner’s absolute liability

for unseaworthiness, including his vicarious absolute

liability for the acts of the stevedore. He would then

have allowed the shipowner to get contribution from the

stevedore to the extent of the latter’s negligence. In

effect, Mr. Kaplan would have retained Sieracki and

overruled both Ryan and Halcyon.

The Kaplan suggestion was given short shrift in both

Committees and never reappeared in the hearings or in

the Committee reports. Senator Eagleton, conducting

the Senate hearings, dismissed the suggestion as being

contrary to the whole “concept of workmen’s compensa-

tion”. Senate Hearings 355. In the House Committee

the Kaplan suggestion was, paradoxically, criticized by

another representative of the plaintiffs’ bar because it

“alters the compensation scheme and that really what

22

the stevedore was promised under the Longshoremen’s

and Harbor Workers’ Act was exclusive liability for

damages to one of its own employees.” House Hearings

152. That was the last heard of apportionment in any

form between shipowners and employers.

2. The Committee Reports

The Senate and House Committees produced Reports

which are identical in most respects. The Senate Report

is No. 92-1125, reprinted in relevant part as an

appendix to Petitioner’s brief. The House Report is No.

92-1441, reprinted in 6 U.S. Code Cong. & Ad: News, 92d

Cong. 2d Sess., at 4698. This Court has demonstrated

the usefulness of these Reports. Northeast Terminal

Co., Inc. v. Caputo, 432 U.S. 249 (1977).

The Respondent and its supporting amici read the

Reports as providing for apportionment of fault

between shipowner and employer. Two general com-

ments can be made in reply. First, it is inconceivable

that the Committees would be thus recommending

legislation which radically altered existing law without

any discussion thereof in the lengthy hearings (except

only for the Kaplan testimony discussed supra).

Secondly, Respondent’s interpretation is made possible

only by taking various statements of the Committees

completely out of context.

For example, Respondent argues that the Committees

specifically adopted “comparative negligence”. While

the Reports do use the phrase (Senate Report 12), it is

perfectly obvious that what is meant is the comparative

negligence of plaintiff and defendant shipowner. In

fact, the remainder of the same sentence so states. The

context is not one in which the relationship of

shipowner and employer is at issue.? The “admiralty

* The phrase “comparative negligence” properly refers to a

comparison of fault between plaintiff and defendant, not

between co-defendants or others. V. Schwartz, Comparative

23

concept of comparative negligence” referred to was that

represented by The Max Morris, supra, which was in

1972 the only form of comparative negligence known to

the American admiralty.

Other statements in the Reports are lifted out of

context, notably this one: “The vessel will not be

chargeable with the negligence of the stevedore or

employees of the stevedore”. Senate Report 11. If the

Committees had been speaking in terms of percentage

apportionment, they could easily have said so. Even the

simple phrase “to the extent that the stevedore is

negligent” would have done it. On the contrary what

they were talking about was the vicarious liability of

the shipowner for the acts of the stevedore in causing

the unseaworthy condition or bringing it into play. In

fact, the Reports expressly so state. Senate Report 9.

This is entirely consistent with the testimony at the

hearings referred to, supra, particularly that of Mr.

Hartman, which developed the concept that the

shipowner should remain liable for his own acts or

omissions as at common law but should not be liable

vicariously for those of the stevedore.

The Reports make this perfectly clear by citing a long

list of cases in this and the lower courts in which

shipowners were held “liable in damages for acts or

omissions of stevedores” in causing or bringing into

play a condition of unseaworthiness. Senate Report 10.

Two of them are worthy of special mention. In one the

unseaworthy condition was caused by the shipowner’s

negligence and brought into play by the stevedore’s

negligence. Crumady v. The J. H. Fisser, 358 U.S. 423

(1959). Had the Committees been disposed to apportion

fault, this would have been a perfect example. In

Negligence (1974); Prosser, Comparative Negligence, 51

Mich. L. Rev. 465 fn.2 (1953).

24

another case cited the shipowner was held liable for

unseaworthiness resulting from a non-negligent act of

the stevedore. Italia Societa v. Oregon Stevedoring Co.,

376 U.S. 315 (1964). There was no room for apportion-

ment there; in fact it represented the ultimate in

vicarious liability. The Committees proposed simply

overruling all of these cases, suggesting no middle

ground such as apportionment of fault.

Our conclusion is supported by the repeated referen-

ces to making shipowners liable “just as land-based

third parties in non-maritime pursuits are liable for

damages when, through their fault, a worker is

injured.” Senate Report 8, 10, 11. (This language can be

traced back directly to Senator Javits and the Minority

Labor Counsel, who likened the situation to one on a

building construction site. Senate Hearings 38, 175-176,

272-274, 656.) The use of land-based law as a measure

has two facets. First, it imported a new standard of care

into third party stevedore actions. Secondly, it recon-

firmed that the common law principle of joint and

several liability would apply on a vessel as on a

construction site. The dissenting judge below thought

this important (A64).

Whether articulated or not, the burden of Respond-

ent’s argument is that the 1972 Amendments overruled,

not only Sieracki and Ryan, but also Halcyon and Pope

& Talboi. Fortunately the Committee Reports carry

their own refutation of such an argument in that they

carefully list the cases which were intended to be

overruled, namely Sieracki (Senate Report 8), Ryan (p.

9), and Crumady, et al. (p. 10). Neither Halcyon nor

Pope & Talbot was included in the list, although they

had both been cited in the hearings.

25

IV.

THE STATUTORY LANGUAGE ITSELF DOES NOT SUPPORT

RESPONDENT’S INTERPRETATION.

The lower court’s misreading of the statute can be

pin-pointed in one phrase which it used four times: the

shipowner is liable “to the extent” of its negligence (A.

55, 56, 57, 58). Obviously such language as that would

call for apportionment, but the fact is that Congress did

not use these words. They were injected by the Court for

the purpose of expressing its own conclusion and have

no probative value.

Respondent cannot point to any language in Section

5(b) which on its face calls for apportionment, and the

Court below made no attempt to point out any such

direct support for its position. In lieu of such supporting

language the Court merely resorted to an exercise in

semantics by reasoning that the first and second

sentences of Section 5(b) are irreconcilable except in

terms of apportioned negligence. We suggest that this is

a slender reed upon which to base the Court’s decision,

and the dissenting judge refused to accept it (A. 64-66).

He read the second sentence as stating simply that “the

plaintiff may not base his claim against the shipowner

upon the negligence of the stevedore.” (A. 65). This

merely expresses the negation of vicarious liability

which we have traced in detail through the hearings

and the Reports. See Griffith v. Wheeling Pittsburgh

Steel Corp., 521 F.2d 31, 40 (8 Cir. 1975), cert. den. 423

U.S. 1054 (1976).

Actually, the short answer to the Court’s interpreta-

tion is that the second sentence (and third sentence)

were included in the statute to cover a situation not

involved in the instant case. This is made plain in the

paragraph of the Report commencing at the bottom of

page 11 and carrying over to the top of page 12. This

Court had held in Reed v. SS Yaka, 373 U.S. 410 (1963),

and Jackson v. Lykes Bros. Steamship Co., 386 U.S. 371

26

(1967), that a longshoremar. could sue his employer for

unseaworthiness of the vessel where the employer was

both shipowner and stevedore. Mr. Justice Harlan,

dissenting with Mr. Justice Stewart, thought that this

repealed the “exclusive remedy” provision of Section 5

(373 U.S. at 416). On the other hand the decision

prevented inequity to a longshoreman who happened to

work for a stevedore loading his own vessel. The

Committees resolved this dilemma by preserving the

right to sue a shipowner-stevedore for the negligence of

his employees not engaged in stevedoring as, for

example, members of the crew, shore-based personnel,

etc.

The second and third sentences, therefore, were

intended to narrow the scope of recovery in a Yaka

situation, while preserving its broad outlines. This has

been the result in all but one of the reported cases.° In

the instant case the shipowner and stevedore are

entirely independent, and therefore the Yaka problem is

not involved.

The lower court does not mention the one provision of

Section 5(b) which deals with the present situation. The

decision below reduces the plaintiff's recovery from

$90,000 to $20,000. Since the insurance carrier (this

amicus) has a lien on the recovery of $49,152.23 (as of

December 18, 1978), the Court’s decision reduces the

carrier’s reimbursement by $29,152.23. In other words

the carrier is called upon to contribute $29,152.23 to the

shipowner who is saving $70,000. It is our position that

*° Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31,

40-44 (3 Cir. 1975), cert. den. 423 U.S. 1054 (1976); Napoli v.

Hellenic Lines, Ltd., 536 F.2d 505, 507 (2 Cir. 1976); Smith v.

M/V CAPT. FRED, 546 F.2d 119, 122-123 (5 Cir. 1977);

Complaint of Allied Towing Corp., 416 F. Supp. 1207 (E.D.

Va. 1976), aff'd 580 F.2d 702 (4 Cir. 1978); Fitzgerald v.

Compania Naviera La Molinera, 394 F. Supp. 402, 409 (E.D.

La. 1975); Contra: Baker v. Pacific Far East Line, Inc., 451 F.

Supp. 84 (N.D. Cal. 1978) (holding Yaka overruled com-

pletely).

27

this ruling is contrary to the statutory language: “* * *

the employer shall not be liable to the vessel for such

damages directly or indirectly * * *.” Professor Robert-

son supports this position in his article Jurisdiction,

Shipowner Negligence and Stevedore Immunities

Under the 1972 Amendments to the Longshoremen’s

Act, 28 Mercer L. Rev. 515, 542 (1977):

“As indicated above, it ought to be completely

clear that, aside from the peculiar situation of the

stevedore who is also a shipowner, all forms of tort

recovery against stevedores on account of long-

shoremen’s injuries are foreclosed by the 1972

amendments. The prohibition in § 905(b) against

any liability of the stevedore to the shipowner

‘directly or indirectly’ should be fully understood to

mean that the negligent shipowner is to bear the

full tort liability to the injured longshoreman,

subject only to a diminution by plaintiffs negli-

gence, and that there is no way for all or part of

that liability to be shifted on account of any

negligence of which the stevedore may have been

guilty.”

Directly in point here is this Court’s decision in Pope

& Talbot, supra, 346 U.S. at 412, which termed a

reduction of the lien “the substantial equivalent of

contribution”. This remains good law.'®

The LHWCA contains other evidence of Congres-

sional intent not mentioned by the Court below. It has

to do with third party actions against others than

shipowners. From 1927 to 1972 the statutory basis for

all third party actions was Section 33, which was not

amended in any relevant respect in 1972. In that year

Section 5(b) was added to cover specifically actions

10 Lo uv. A/S Svendborg, 581 F.2d 319, 325-326 (2 Cir.

1978); odo uv. Bucyrus-Erie Co., 579 F.2d 714, 725 (2 Cir.

1978); Landon v. Lief Hoegh & Co., 521 F.2d 756, 760 (2 Cir.

1975), cert. den. 423 U.S. 1053 (1976); Dodge v. Mitsui

Shintaku Ginko K.K. Tokyo, 528 F.2d 669, 673 (9 Cir. 1975),

rt. den. 425 U.S. 944 (1976); see Samuels v. Empresa Lineas

Matinee Argentinas, 573 F.2d 884, 888 (5 Cir. 1978).

28

against “a vessel,” as defined in Section 2(23), but

which we have loosely called a “shipowner.”

The Court below purports to find in 5(b) a formula for

apportionment of fault between employer and ship-

owner. Yet no one has ever contened that 33 provides

for apportionment between employer and other types of

third party tortfeasor. This is illogical. There is no

apparent reason for treating shipowners and non-

shipowners any differently. In fact, it would be contrary

to the legislative intent to grant to negligent ship-

owners a limitation of liability to injured employees not

granted to non-shipowners.

Congress had the stated “objective of encouraging

safety”. Senate Report 10. Such a grant to a negligent

shipowner would immunize him from liability for the

full damages resulting from his negligence while

exposing the non-shipowner to full liability no matter

what the percentage of his fault. Yet Congress must

have thought that, of all types of third parties, it is the

shipowner who should be given the incentive to

maintain safety on shipboard. In fact, the Committees

said that “the vessel will still be required to exercise the

same care as a land-based person in providing a safe

place to work” (p. 10). In other words Congress intended

to subject all third parties to the same rules, whether

sued under Section 5(b) or Section 33. This meant the

same standard of care and the same rule of full liability.

Otherwise shipboard safety might be compromised.

As previously indicated, suggestions were made at

the hearings that shipowners should be entirely

immune from suit (and subject to workmen’s compensa-

tion liability), while negligence suits against other third

parties would be preserved. House Hearings 87. The

Committees rejected the suggestion and undertook to

treat them all alike. Senate Report 8. It follows that if

there is no apportionment under Section 33, there can

be none under Section 5(b).

eS em ee

29

The decision of the Court of Appeals has already led

to a situation in the Fourth Circuit which thwarts the

purpose of the Amendments to guarantee the employer

an “exclusive remedy” in return for higher benefits. The

Court below said that “the stevedore might be made a

party plaintiff’ so that his lien rights could be

adjudicated. A. 61. In other words, stevedores would be

“subject to additional law suits,” which is precisely

what the Congress said should not be done. Senate

Report 4.

Attorneys for shipowners in Baltimore and Norfolk

have been filing motions to require the joinder of

employers and their insurance carriers at the inception

of the litigation. E.g. James R. Butler v. Eucharis

Shipping Corp., Civil Action No. 78-431-N in the

Eastern District of Virginia, Norfolk Division; Stanley

M. Wetters v. Moore-McCormick Lines, Inc., Civil

Action No. H-77-858 in the District of Maryland. In the

latter case the District Judge entered an order summar-

ily granting the motion, and the employer is now a

party to “tripartite litigation” again despite all that

Congress said in 1972. This exposes the fundamental

error in the decisior below.

V.

CONGRESS COULD NOT HAVE INTENDED TO LIMIT EM-

PLOYERS’ LIEN RECOVERIES AS WELL AS BURDENING THEM

WITH THE INCREASED COST OF COMPENSATION BENEFITS.

Respondent has argued that Congress intended to

give employers an added financial inducement to

promote safety by limiting their lien recoveries where

their negligence contributed to injuries. This shows

considerable ignorance of the cost of waterfront safety

(or lack thereof) and workmen’s compensation. The

LHWCA itself furnishes all the financial incentive

necessary to promote safety. It is the employer (and his

carrier) who pay first and pay most, no matter who was

negligent. Lien recoveries in third party suits are a

30

small factor in the equation. This has been particularly

true under the 1972 Amendments because the Courts of

Appeals have taken a very strict view of the negligence

standard to be applied against a shipowner. The

shipowner has been extremely successful in defending

such suits, using the conservative language of the

Reports as a defense.'! Congress intended this result.

This is what the shipowner got cut of the “trade-off”

referred to by the Court below. A57a. He was given good

defenses when he was not negligent, not a new

limitation of liability when he was negligent. Congress

simply had no reason to give the shipowner any other

benefits even if he had asked for them, which, as we

have noted above, he did not do.

When it came time in 1972 to add to the employer/car-

rier’s financial burdens, Congress set Ossa upon Pelion.

The brief of amicus National Association of Stevedores

lists the increased benefits under the Amendments. Just

as an example, the maximum weekly payment had

theretofore been $70; it is now $396.78, with a built-in

escalation for annual inflation increases.

During 1977 and 1978 the Subcommittee on Compen-

sation, Health and Safety of the Committee on

Education and Labor of the House of Representatives,

95th Cong., Ist Sess., has been conducting Oversight

Hearings on the LHWCA. (Part 1 (953 pp.) has been

printed, and Part 2 is expected shortly.) The waterfront

industry covered by the LHWCA has been in a state of

financial crisis as a result of the additional costs

imposed by the 1972 Amendments!2 and the unavaila-

'! E.G. Anderson v. Iceland Steamship Co., (1 Cir. 9/29/ 78)

(not yet reported); Munoz vu. Flota Mercante Grancolombiana,

553 F.2d 837 (2 Cir. 1977); Hurst v. Triad Shipping Co., 554

F.2d 1237 (3 Cir. 1977); Chavis v. Finnlines, Ltd., 576 F.2d

1072 (4 Cir. 1978); Gay v. Ocean Transport & Trading Ltd.,

546 F.2d 1233 (5 Cir. 1977); Wescott v. Impresas Armadoras,

S.A., 564 F.2d 875 (9 Cir. 1977).

”? An insurance expert testified, for example, that the

widow of a deceased employee, who might have died from

causes unrelated to his injury, could receive death benefits of

nearly $2,500,000 by age 77. Oversight Hearings 489.

ad

31

bility of insurance because the risks are largely uninsu-

rable.’

Reference to these volumes, and to the two recent

newspaper articles printed as an Appendix to this brief,

will show two things. First, to the extent Congress

intended to promote safety by increasing employers’

financial burdens, it was overkill; there was no need to

resort to any “credit” against lien recoveries to

accomplish this purpose. Secondly, Congress is cur-

rently and actively surveying the operation of the 1972

Amendments and can be expected further to amend the

Act if it believes that an apportionment formula should

be added.

It is the position of this amicus that since Congress

undertook to cover the whole field in 1927, and to cover

the specific subject of the employer-shipowner relation-

ship in 1972, the establishment of a proportionate fault

rule is a matter for Congress to prescribe in clear

language, if that is what it wants. The Fourth Circuit

majority has impatiently re-written the statute as it saw

fit. All other courts have deferred to Congress. We ask

this Court to do likewise. We note in passing that the

situation here is unlike that in Reliable Transfer,

supra., where Congress had failed to accept | the

opportunity to legislate in the field of collision liability.

13 Various witnesses testified that the risk is now so

unpredictable that insurance is “prohibitively expensive and

in some cases unavailable”. P. 492. One stevedore executive

showed letters from 23 insurance companies refusing to quote

on his primary coverage. Pp. 462-481.

32

CONCLUSION

This Court has had only one previous occasion to

consider the 1972 Amendments. Northeast Terminal

Co., Inc. v. Caputo, supra (actually a group of cases we

call Caputo). Although the issues there were different,

the Court’s method of analyzing the statute is adapta-

ble here. In Caputo the Fourth Circuit claimed to have

found in the Committee Reports evidence that Congress

intended to adopt the “point of rest” rule for jurisdic-

tional coverage. All other Circuits disagreed. In the

instant case the Fourth Circuit claims to have found

evidence of the proportionate fault rule. as between

shipowner and employer. All other Circuits disagree. In

Caputo this Court, in reversing the Fourth Circuit (see

Adkins v. I.T.O. Corporation of Baltimore, 433 U.S. 904)

used language appropriate here. It rejected:

“A theory that nowhere appears in the Act, that

was never mentioned by Congress during the

legislative process, that does not comport with

Congress’ intent * * *.” 432 U.S. at 278.

The decision below should be reversed.

Respectfully submitted,

Davip R. Owen,

SEMMES, BOWEN & SEMMES,

Attorneys for Liberty Mutual

Insurance Company,

Amicus Curiae,

10 Light Street,

Baltimore, Maryland 21202.