# Petition — Empresa Lineas Maritimas Argentinas v. Samuels > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2053%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 915 ## Text EMPRES PETITIO} INDEX Page SE A a ee 1 EL ST ae 1 Questions PRESENTED: 1. Whether 33 U.S.C. §905(b) of the Longshore- men’s and Harbor Workers’ Compensation Act which purports to relieve the shipowner from liability in damages for acts or omissions of the stevedore, requires the finder of fact to eval- uate and ascertain the percentages of fault of the concurrently negligent stevedore and reduce the plaintiff/longshoreman’s recovery against the shipowner accordingly. [This question will in general be referred to as the “equitable eredit or proportional fault issue.”] ........ 2 2. Whether under the 1972 Amendments to 33 U.S.C. §905(b) which abrogated a longshore- man’s cause of action based upon the warranty against unseaworthiness, the shipowner is liable for injuries to an employee of an independent contractor when the danger presented at the place of work on the ship is open and obvious and known to the stevedore supervisory em- ployees, and the ability to mitigate the dangers ee ee eee ee eee. 4a le ey, Writ: w Is SHarPLy In CoNFLICT JrHER Courts or APPEALS .. Circuit versus Fourth Cir- . Credit Question. Certiorari review this conflict in Ed- 19 on November 6, 1978 ... versus Second Circuit on WS NEN S de ccnndusys rsus Land-based Negligence $0208 686648 006060066 6 0 6 @@:6. 8 6 LVES IMPORTANT QUESTIONS RPRETATION IN WHat Con- s Feperat Law. THe Dect- oF APPEAL ARE IN DISARRAY Can On ty Be Resotvep By or Tus Court .......... 12 Page Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed. 2d 694 (U.S. 1974) 12, 13, 14 Cox v. Flota Mercante Grancolombiana, S8.A., 577 F.2d 798 (2d Cir. 1978), cert. denied, Case No. 78-72 ... 8,9 Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362 (Pa. ic EE, SIRE NA Fe aE ETD as 11 Crawford Johnson & Co. v. Duffner, 189 So.2d 474 (Ala. nn RO TEES Clin Eee 1 ay a Shit aaa 11 PUNE hae BEG Ca ada thks an i 60s «-aedione oi 11 S.Ct. 1685, 48 L.Ed. 2d 188 (1976) ........... 6, 12,13 Edmonds v. Compagnie Generale Transatlantique, 557 F.2d 1153 (4th Cir. 1978), cert. granted No. 78-479 ¢ Revit ee re 6, 7, 12, 14,15 Florida Power ¢ Light Co. v. Robinson, 68 So.2d 406 SC RE Ae Fak 65S) died one bh 0-ns-08 sa or'ds o dice 11 ME Ae whht ntkab he Cai ni tks ns Gli kbs kes kane FY or Cooper Stevedoring was the Court called upon to determine the validity of a credit defense such as that approved by the Fourth Circuit in Edmonds. Regardless of the distinguishing features of these Supreme Court cases, each provides some guidance by analogy. Where, as here, the guidance is inconsistent, it is appropriate for this Court to step in and eliminate any discrepancies through a clear directive to the courts below. This is particularly true in this instance since ‘“‘the Judiciary has traditionally taken the lead in for- mulating flexible and fair remedies in the law mari- time... .’’.United States v. Reliable Transfer Co., Inc., 421 U.S. at 409. 3. The Conflict Involves Important Questions of Statutory Interpretation in What Congress Designated as Federal Law. The Decisions of the Courts of Appeal Are in Disarray and the Conflict Can Only Be Resolved by the Prompt Action of This Court. Congress intended that legal questions arising in ac- tions brought under the Longshoremen’s and Harbor Workers’ Compensation Act are to be determined as a matter of federal law.’ asad set tines ae tet at as Over the pas gled under the ‘*federal comm and have tried the various Sta common law. 7 development of identified sever, formity. There is a el uncertainty nov faced with ma severity of the dustry are well Edmonds, No. ' The granting opportunity fo) credit issue. However ‘‘eq uncertainties e) shipowner litig: A determinat certainty and uniformity sought | maritime community. CONCLUSION Petitioner respectfully urges t granting the writ are significant: t tions of the interpretation of the fi be reviewed and decided by this Cc ity will be restored to all maritime Respectfully submi NATHANIEL G. P. O. Box 143 Tampa, Florid Tel: (813) 22! Attorney for F FowLer, WHITE, GILLEN, Bocas, VILLAREAL AND BANKER, P.A. Of Counsel November 13, 1978 APPENDIX beams abutted only three sides of the stanchion-ladder, there was a space behind the ladder as wide as the ladder, described variously by the witnesses as from 16 inches to 21% feet in width. On April 13, 1973, at 9:30 p. m., the plain- tiff slipped or stepped backwards into this void after get- ting a drink of water from a cooler. There was evidence that the stevedore foreman and one or more of the other longshoremen knew of the hole; but there was evidence that the plaintiff himself did not know of it, and that it had never been called to his attenion. There was no dunnage over the cavity. The opening would have been open and obvious had the area been well lighted. The ship was being unloaded at night. It had no fixed or permanent lights under the tween deck of the lower hold. Therefore, it was necessary to use drop lights arranged in a cluster beneath a reflector to provide sufficient illumi- nation for the work to proceed. The lights were provided by the ship but placed by the stevedore’s personnel. One was placed on each of the four corners of the hatch opening. This provided enough light to enable the men to work. The degree of illumination, however, was not clearly established. Some witnesses testified that they could see the hole into which the plaintiff fell; another that it was obscure; one testified that the level of illumination was the |] light the } Ur liabil on tl unre. pect dang condi evide Secti against a vessel sued pursuan after considerable discussion, Fourth Circuit in Edmonds v. atlantique, 4 Cir. 1977, 558 1 granted June 3, 1977, held tha to be “confined to its own negli utory fault on the part of the « tiff’s recovery should be redu ployer’s negligence. The plain the compensation he has recei recoup what he has paid fror subrogation provision of the ] Worker’s Compensation Act, 3 The rationale for not reducir ery because of his employer’s the Ninth Cireuit’s in Dodge v. Tokyo, 9 Cir. 1975, 528 F.2d 66! 944, 96 S.Ct. 1685, 48 L.Ed.2d 1§ States Lines, Inc., 9 Cir. 1975 1976, 425 U.S. 936, 96 S.Ct. 166 conclusion was reached (in dic Landon v. Lief Hoegh & Co., 2 cert. denied sub nom., 1976, 42. L.E.d.2d 642. Jireuit allowed what has come to be known as the “Murray ‘redit” and allowed the tortfeasor in a common law tort ction to claim a 50 precent credit if the compensation- overed plaintiff’s employer were found to be contributorily egligent. Murray v. United States, 1968, 132 U.S.App.D.C. 1, 405 F.2d 1361. It later extended the same principle to an mployee-plaintiff covered by the Longshoremen’s and Har- or Workers’ Compensation Act. Dawson v. Contractors ‘ransport Corp., 1972, 151 U.S.App.D.C. 401, 467 F.2d 727, _ pre-1972 amendment case. In addition, a number of legal scholars have probed for solution. Robertson, Negligence Actions by Longshore- ren Against Shipowners Under the 1972 Amendments, ete., 976, 7 Journal of Maritime Law and Commerce, 447, 480, / eq.; Cohen and Dougherty, The 1972 Amendments to the ongshoremen’s and Harbor Workers’ Compensation Act: n Opportunity for Equitable Uniformity in Tripartite In- ustrial Accident Litigation, 1974, 19 N.Y.L. Forum 587 ; horter, In the Wake of the 1972 Amendments ot the L. & .W. C.A.: The Vessel’s Rights Against the Stevedore, 76, 7 J. of Mar.L. & Com. 671; Steinberg, The 1972 mendments to the Longshoremen’s and Harbor Workers’ ompensation Act: Negligence Actions by Longshoremen gainst Shipowners—A Proposed Solution, 1976, 37 Ohio as 767 + (nlaman ee ee ee 6 ll ‘sions would merely further prolif- We adhere to the logic of the Ninth conclusion, we start with the pre- the employer is immune to suit for m by the vessel. 33 U.S.C. § 905; stern Transmission Corp., 5 Cir. . denied sub nom., 1976, 423 U.S. d.2d 638; Aetna Casualty & Surety ng, Inc., 5 Cir. 1973, 490 F.2d 299. 0 the Longshoremen’s and Harbor Act evidence no intention of over- _Haenn Ship Ceiling & Refitting 72 S.Ct. 277, 96 L.Ed. 318. Cooper Fritz Kopke, Inc., 1974, 417 U.S. Ct. 2174, 2178, 40 L.Ed.2d 694. rressional aims in 1972 were two- nseaworthiness action but leave in tion with promotion of shipboard 8; (2) eliminate any form or ves- ttempt to shift liability (in whole indirectly) to the stevedore. See it.L. & Com. at 484-85. Permitting 1e these aims by effectuating with- “fo tor eee Se | oe « nee ae Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, and the longshoreman’s compensation benefits were increased and the geographic area of coverage expanded. See North- east Marine Terminal Co., Inc. v. Caputo, 1977, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320. It is not apparent that the vessel owner was saddled with a disproportionate bur- den under the scheme. The plaintiff’s recovery is still re- duced proportionately to his own fault, Pope and Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; see Edmonds, supra, 558 F.2d at 189; Dodge, supra, 528 F.2d at 673; Landon, supra, 521 F.2d at 760, and the Act does not prevent the shipowner from seeking either contribution or indemnity from third persons other than from a covered plaintiff’s employer. But the Act does mandate that the em- ployer’s exclusive liability will be compensation under the Act. If there is a further adjustment to be made when the vessel’s common law negligence is concurrent with the plain- tiff’s employer’s negligence, the decision is for the Congress. Allowing an offset or credit raises questions best decided by a legislative body which can account for factors that we may not appropriately consider: what kind of employer neg- ligence reduces the longshoreman’s recovery: common law or maritime? [That is, should the standards of judging em- ployer negligence be the same as thase annijachla tn the --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2053%3A1. Public record. Not legal advice.