# Petition — Simko v. C & C Marine Maintenance Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 833

## Text

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IN THE

Supreme Court of the United States

No. cs _—% G4 is
Term, 197

JOHN BR. SIMKO, Administrator of the Estate of JOHN

R. SIMKO, III, Deceased and LUELLA CAMPBELL
MILLER, on behalf of JOHN R. CAMPBELL, a minor,

Petitioners
VS.

& © MARINE MAINTENANCE CO., a corporation;
AMERICAN COMMERCIAL BARGE LINES COM-
PANY, a corporation; GEORGETOWN LANDING CO.,

a corporation

Respondents

PETITION ror A Writ or CERTIORARI TO
THe Unrrep States Court or APPEALS
FOR THE ‘Tiiap Cirncurr

STANLEY M. STEIN
FELDSTEIN GRINBERG STEIN
& McKEE
Counsel for Petitioner
707 Law & Finance Building
Pittsburgh, PA 15219
(412) 471-0677

Financial Press Corporation, Pittsburg!

INDEX

Page
RIE Ee PI. occ ec ccocaceedinccereceds ii
oe ek ss heweckbane
Nee viele ceclee umes |
Se ERECT TEED gn cc cicccavscccecscecees |
STATUTORY PROVISIONS INVOLVED ........... |
eh ge er 2
REASON FOR GRANTING WRIT .................- 4
viva’ coe esanr 8
Neen ne ey cheb tweens s la

TABLE OF CITATIONS

Page
Butler vo. Whiteman, 356 U.S. 271 (1958) ............ 5,7
Griffith vo. Wheeling Pittsburgh Steel Corp.,
521 F.2d 31 (3rd. Cir.) 1975, cert. denied,
NaS aie) ET REET, fa wa 941s 2 ewes Ww Kew do alae 4
Crimes ©. Raymond Concrete Pile Co.,
6 Mak Fe We. CA Rene rg ean tee Sa intel Ge
Seas Shipping Co. v. Sieracki,
ee Wc CR os he iiwesh < eo Cet vam deh wecewmenkes 4
Senko v. Lacrosse Dredging Corp.,
Sees -&) as SP CTE Sh eka 6 CaN Adah cease cs Oe
Ovnen AUTHORITIES
oe, a oe Oe. ee Oy & fe Ne
Bee ha rs REC ET 2s cea 6 ons ke ened OE de awenn |
EPOCtHME C8 Li eORWOOTTIIONS 6 vac ccc vides cs cede cbecvuued

OPINIONS BELOW
The opinion of the Court of Appeals appears as Appen-
dix A hereto. The opinions of the United States District
Court for the Western District of Pennsylvania appear at
Appendix B and © hereto respectively.

JURISDICTION

The judgment of the Court of Appeals for the Third Cir-
cuit was entered on February 20, 1979. This petition for certi-
orari was filed within 90 days of that date. This Court's
jurisdiction in invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED
Whether a jury could find under the facts that the
deceased was a Jones Act Seaman.

STATUTORY PROVISIONS INVOLVED

Unrrep States Cope, Trrir 46

§688. Recovery for injury to or death of seaman. — Any
seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for
damages at law, with the right of trial by jury, and in such
action all statutes of the United States modifying or extend-
ing the common-law right or remedy in cases of personal
injury to railway employees shall apply; and in case of the
death of any seaman as a result of any personal injury the
personal representative of such seaman may maintain an
action for damages at law with the right of trail by jury, and
in such actions all statutes of the United States conferring or -
regulating the right of action for death in the case of railway
employees shall be applicable. Jurisdiction in such actions
shall be under the court of the district in which the defendant
employer resides or in which his principal office is located.

2
STATEMENT OF THE CASE
Petitioner's deceased, John R. Simko, HI, hereinafter
called “Simko,” was hired by Respondent C & C Marine
Maintenance Company on February 22, 1972. Three weeks
later he drowned when he fell from a barge into the waters of

the Ohio River and was dragged by the current under the
rake end of another barge moored a few feet downstream.

John R. Simko, the Administrator of his son's Estate, and
Luella Miller, guardian of the deceased's minor son, brought
this action in the United States District Court for the Western
District of Pennsylvania under the Jones Act, Tithe 46 U.S.C.
$688, and under Admirality and Maritime Law. Vhe action
was brought against Respondent C & Cas the employer, and
agaist American Commercial Barge Lines (ACBL), the
owner of a barge numbered ACBL, 2699, the barge from
which Simko fell into the water.

Summary Judgment Motions by both & Cand ACBL,
having been previously denied, jury trial in the case was
begun on February 20, 1976.

The testimony indicated that the ACBL, barge 2699 was
tied to a crane barge owned by C & ©. The crane barge was
moored to an office barge also owned by C & C and both the
office barge and the crane barge were moored to mooring
clusters sunk into the bed of the river. Lines went from these
vessels to the shore and the office barge was connected to the
shoreline by a gangplank.

A tew feet down river from ACBL 2699 was another
barge, MIVIS4, and it was between these two barges that
Simko fell, the current carrying him quickly beneath the
rake, or slanted end, of MV 134.

Petitioner presented evidence at trial which tended to
show that Simko performed a variety of laboring duties

3

aboard the crane barge, including the carrying of pumps, the
handling of hoses, sweeping, shoveling and general mainte-
nance work. This work was performed for the Respondent,
C & ©, which was in the business of cleaning and repairing
river barges brought to it by other companies. As an
employee of C & C, Simko, the evidence indicated, worked
on the crane barge. Although he had not been employed for
a very long time, Simko had apparently worked each day on
or near the crane barge, which floated off shore.

One of Simko’s witnesses included Earl Fowler, a veter-
an of 35 years of river employment in jobs ranging from
night watchman on a dredge barge and deckhand to chief
engineer and river pilot. Fowler testified in general to the
duties of a deckhand aboard a navigable vessel, compared
those duties to those of Simko as they had been described by
other witnesses, and expressed the opinion that Simko was
doing work traditionally done by a deckhand aboard a
navigable vessel.

As aresult of Simko’s death, the actions were brought in
wrongful death and survival against both C & C and Ameri-
can Commercial Barge Lines, and sought recovery under the
Jones Act and the Doctrine of Unseaworthiness. ACBL
crossclaimed against C & C for indemnity and the case was
submitted to the jury on both the Jones Act and Unseaworth-
iness claims.

The jury returned a general verdict in favor of the Plain-
tiffs on the Jones Act and on Seaworthiness claims against C
& C in the amount of $61,000.00 The jury found in favor of
ACBL on Plaintiffs’ claims and also found in favor of ACBL,
on its crossclaim for indemnity against C & ©,

The United States Court of Appeals for the Third Cir
cuit reversed the verdict to the extent that the jury may have
relied on the Jones Act, holding that there was insufficient

4

evidence to submit to the jury on the question of whether
Simko performed “significant navigational functions” with
respect to the crane barge.

The Court of Appeals further vacated the judgment, but
remanded it for additional proceedings, so that the District
Court Judge could, on the admirality side of the Court, de-
termine whether or not Simko was a longshoreman who,
although not a Jones Act seaman, was nevertheless entitled
to the guarantee of seaworthiness while temporarily
engaged in seaman’s work and exposed to a seaman’s
hazards aboard ACBL 2699, citing Seas Shipping Co. v. Sie-
racki, 328 U.S. 85 (1946). The opinion of The Third Circuit
was issued on February 20, 1979. Judge Gibbons filed a Dis-
senting Opinion indicating that the Plaintiff had presented
sufficient quantum of evidence to submit to the jury on the
Jones Act claim. Petitioner filed a Petition for Rehearing by
the Court en banc, which Petition was denied on March 20,
1979.

REASON FOR GRANTING WRIT

The Decision Below Conflicts With Decisions Of The
United States Supreme Court On The Issue Of Whether
Or Not Sufficient Evidence Was Presented To Be Sub-
mitted To The Jury On The Jones Act Claim.

Citing its own opinion in Griffith vo. Wheeling Pittsburgh
Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert. denied, 423 U.S.
1054 (1976), the Court of Appeals determined that the tes-
timony showed that “Simko was hired by C & C asa laborer
and that his function was to assist in the cleaning of barges
moored to C & C’s crane barge. He shoveled debris from
their interiors, squirted their decks with water hoses. and
helped in carrying pumps and other equipment used in the
cleaning operations. There was no evidence presented to
show that in performing those duties he was engaged, at any

5

time, in the handling or maneuvering of any barge. Simko
was not involved in transporting of ACBL 2699 to C & C’s
facilities or the mooring of ACBL 2699 to the crane barge.
Moreover, neither ACBL 2699 nor the crane barge was ever
in motion at the time Simko was aboard”. (App. A at 6a).

The Court further determined that “a maritime worker
who does not actually go to sea, but who was injured while
performing duties on a navigable vessel must establish that
he performed significant navigational functions with respect
to that vessel in order to recover under the Jones Act. The
record is devoid of any proof that Simko performed such
functions....” (App. A at 7a).

In arriving at its determination, the Circuit Court distin-
guished this Court’s Opinion in Senko v. LaCrosse Dredging
Corp., 352 U.S. 370 (1957), but Petitioner suggests that sucha
distinction was in error and that the decision of the Third
Circuit conflicts with the decision of this Court in Senko and
in Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (1958)
and Butler v. Whiteman, 356 U.S. 271 (1958). In Senko,
which Judge Gibbons recognized was “virtually identical” to
this case, the injured deckhand performed work which this
Court characterized as “that of ahandyman”, 352 U.S. at 371.
His job was, in general, “to keep the dredge ‘in shape’ ” (352
U.S. at 372).

This Court determined that “a normal inference is that
Petitioner was responsible for its seaworthiness.” Id., 372-
373.

There was no requirement in Senko that the Petitioner
have actually participated in the movement of the dredge
during navigation or even that the dredge had been in navi-
gation while he was employed thereon. In Senko, the Peti-
tioner was injured while he was ashore.

The Third Circuit Court, however, indicated that the
injured must establish that “he performed significant naviga-

6

tional functions” in order to recover. Senko contains no such
requirement. The whole thrust of the Court’s Opinion in
Senko seems to suggest that the jury would be permitted to
determine whether the Petitioner was in general responsible
for the seaworthiness of the vessel and if he would have those
responsibilities in the event the vessel was moved.

In the instant case, the Third Circuit held that shoveling
debris from the interior of barges, squirting their decks with
water hoses and carrying pumps and other equipment used
in operations for cleaning the barges did not constitute evi-
dence that Simko was engaged in the handling or maneuver-
ing of any barge. Nevertheless, this Court in Senko
suggested that the responsibility for maintaining the sea-
worthiness of a vessel constituted a significant navigational
responsibility. Responsibility for maintaining seaworthiness
in the instant case, therefore, should be equally related to
navigation.

In addition, the Third Circuit Court noted that “neither
ACBL 2699 nor the crane barge was ever in motion at any
time Simko was aboard.” (App. A at 6a). This Court in
Senko, however, specifically noted that “the dredge was
anchored to the shore at the time of Petitioner's injury and
during all the time Petitioner worked for Respondent. It is
also true that this dredge, like most dredges, was not fre-
quently in transit.” 352 U.S. at 372. Nevertheless, the Court
determined that there was sufficient evidence in the record
for the jury to decide that Petitioner was permanently at-
tached to and employed by the dredge as a member of its
crew.

The issue was one for the jury and the dec*sion of the
jury had a reasonable basis.

Since Simko was responsible for keeping the barge sea-
worthy the jury could conclude that in the event the barge

7

were to be moved, he would perform the same deckhand
functions. Certainly, it must be concluded that keeping a
vessel seaworthy is a direct aid in navigation, as indicated
before, even though there might not be testimony in Simko’s
case that he would have taken soundings.

In Butler v. Whiteman, 356 U.S. 271 (1957) the decedent
was employed as a laborer doing odd jobs around the
Respondent's wharf. On the date that he died, the decedent
was Cleaning the boiler of a tug which had been withdrawn
from navigation because it was inoperable. It had, on one
occasion, been towed to drydock, but during the entire year
before and after decedent's death, the tug had neither Cap-
tain nor crew and reported no earnings. Nevertheless, this
Court held that the evidence presented a basis for a jury find-
ing that the deceased was a seaman and a member of the
crew of the tug within the meaning of the Jones Act.

Finally, in Grimes v. Raymond Concrete Pile Co., 356
U.S. 252 (1957), the Petitioner was a member of the Pile
Drivers Union and had assisted in the construction of a Texas
Tower in the Bethlehem East Boston Yards as an employee
of Raymond. When the tower was towed to sea, the Peti-
tioner lived on the tower and kept it in condition, operating
air compressors, generators and pumps. He also performed
certain functions to keep it in safe tow. The tower, however,
was delivered to its final and permanent site and the Peti-
tioner performed only pile driving while temporary pilings
were being driven down. While being transferred from a tug
to the tower on a Navy life ring, the Petitioner was injured.
He was not a member of the crew of the tug at the time, hav-
ing only been aboard the tug for transportation purposes.
The tower had already been placed in its permanent positicn
for six days.

Nevertheless, the Court held that the Petitioner's “evi-
dence presented an evidentiary basis for a jury’s finding

4

whether or not the Petitioner was amember olf acrew obany

vessel SOG US. at 255. citing Senko. among other cases

The decision of the Third Circuit, therefore, violates

roles of law as set down by this Court. and should be

reviewed

CONCLUSION

For the foregoing reasons, a Writ of Certiorart should
issue to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit

Respeettally subanitted,

Srantey AL Sorin,

PEELIOS TREN CHUN EE TOG. SEROEN
& MIKE

(OF Law & Finanee Building

Pittsburgh, PA Tsetg

laa

APPENDIX A

United States Court of Appeals

Fon ce Tram Cancun

Nos. 78-1174, 78-1175 & 78-1176

JOUIN KO SIMKO, Acluinistrator of the ESTATE OF
POEUN ROSIMKO). TL, deceased, and LUBRDLDLA CAMP
BEE, MILDER, on her own behalf, and as parent ane
natural guardian of POEIN ROCAMPBEL AD. a maine on
behalf of POELIN RO CAMPBELL, a minor

()& © MARINE MAINTENANCE CO), a corporation,
AMERICAN COMMERCTAL BARGE LINES COM
PANY. a corporation, GHhORGCE TOWN LANDING
C(O) a corporation

(1& € MARINE MAINTENANCE CO),
Hw comporation,

Appellant

On Aperar Pnont cee Unie Stages Dastnned Clouse
ron opie Westean Distaed on Preansvivanta
(Civ. No. 74-172. W.D. Pa.)

Argued November bd, LOTS
Before Serve, Chief Judge, Ginnons and Woees,
Circuit Judges
(Opinion filed Pebroary 20. L979)

Bruce KO Martin, esquire
Pittsburgh, Pao see

Counsel for Appelhant

9,
~e

Stanley M. Stein, Esquire

Feldstein Grinberg Stein &
McKee

Pittsburgh, Pa. 15219
Counsel for Appellees
John R. Simko, et all.

John W. Jordan, IV, Esquire
Thomson, Rhodes & Grigsby
Pittsburgh, Pa. 15219
Counsel for Appellee
American Commercial Barge
Lines Company

OPINION OF THE COURT
Serrz, Chief Judze.

This appeal presents the question whether John R.
Simko, TD occupied the status of a seaman for purposes of
recovery under the Jones Act, 46 USC § 6SS, at the time of
his death. It also requires this Court to venture into the mael-
strom of the maritime doctrine of unseaworthiness and its
counterpart, the right of a shipowner to claim indemnity
trom a stevedore for expenses incurred in defending an

action for damages brought by the stevedore’s employee.

John Simko was hired by © & © Marine Maintenance
Company (© & ©) as a laborer. He was assigned the job of

‘Simko's accident predated the effective date of the 1972 amend
ments to the Longshoremen’s and Harber Workers’ ( compensation Act, 33
USC. $901 et seq. Those amendments eliminated a iongshoreman’s
action for unseaworthiness against the owner of the vessel and the corres
ponding indemnity action by the shipowner against a stevedore
employer. See Hurst 0. Triad Shipping Co., 554 F 2d 1237. 1243-44 (3d
Cir), cert. denied, 34. US. 861 (1977), Griffith © Wheeling Pittsburgh
Steel Corp., 521 F.2d 31, 40 (3d Cir, 1975), cert. denied, 423 US LO54
(1976)

3a

assisting in the cleaning and minor repair of barges brought
to C & C's facilities along the Ohio Riv © by a variety of
barge companies. On March 11, 1972, s ne two weeks after
his hiring by © & C, Simko was assisting in the cleaning of
barge #2699, owned by American Commercial Barge Lines
Company (ACBL). While pulling on a water hose being used
by another employee in washing ACBL, #2699's deck, Simko
slipped and fell overboard. Despite efforts to throw him a
line Simko was swept beneath barges moored nearby by the
swift current and he drowned. His estate brought. this
wrongful death and survival action against both C & C and
ACBL, seeking recovery under the Jones Act and the doe
trine of unseaworthiness. Both defendants denied liability
under either claim, and ACBL, crossclaimed against C & ©
for indemnity from any liability or expense incurred in
defending the lawsuit that was attributable to CG & C's
breach of its implied warranty of workmanlike service in
contracting to clean and repair barge #2699.

In order to facilitate an understanding of the issucs pre
sented in this appeal it is necessary to recount the theories of
liability asserted by plaintiffs. Their cause of action was
founded on the Jones Act and the maritime laws of this coun-
try, particularly the doctrine of unseaworthiness. ‘The plain-
tiffs demanded a jury trial on both the Jones Act and
unseaworthiness claims.

This case was submitted to the jury with separate
instructions on the two claims. The court instructed the jury
that they could find that Simko was a Jones Act seaman
employed by C & C as a member of the crew of either ACBL
#2699 or © & C's crane barge, to which #2699 had been
moored, and that C & C's negligence caused his death. The

‘The court instructed the jury that if they found Simko to be a

member of the crew of only ACBL, #2699, they could still find against C) &
(continued)

court, also instructed the jury that ACBL. as Simko’s
employer, could be found liable under the Jones Act for Sim
ko's death if its negligence in controlling and supervising his
duties while aboard barge #2699 had caused the accident. !

With respect to the unseaworthiness claim the court
instructed the jury that they could find either defendant lia-
ble if an unseaworthy condition aboard one of its vessels
caused Simko's death. The instructions permitted recovery
against © & © alone if the crane barge were found unsea-
worthy; if ACBL, #2699 were found unseaworthy, liability
could be imposed against its registered owner or against ©) &
(, as owner pro hac vice. Moreover, the instructions permit
ted liability to be imposed against either defendant for an
tnseaworthy condition on ACBL, #2699 if Simko were found
to have been working as a longshoreman aboard that vessel.
rather than as a member of its crew

(onthe Jones Act claim if they found that © & © was owner pro hae vice
of that barge © & © argues on appeal that the district court's bastructions
on that aspect of the Jones Act claim were in error be: ose. as aomnatter of
law. it did not occupy the status of pro hac vice owner of ACBL, #2699
However, that instruction in the contet ofa dones Aet claim appears to
have been superthious, Once it is established that an employer employee
relationship exists between a tones Act seaman and the defendant. it is
only necessary for the plaintiff to show that the defendant's negligence
caused the injury complained of inorder to recover, Ow nership of the ves
selon which the seaman was a crew member is not anes essary clement of
prook See Spinkse Cherron Oi Co 507 F 2d 216, 224 (5th Cin LOTS). See
alse Griffith © Wheeling Pittsburgh Steel Corp, 521 F 24 BE OOtd Cin
INT) cert denied, A230 SS. 1O54 (L976). Mach + Pennsylt ania Railroad
Co. Ab 2d 761 (Sd Cr 1963)

‘The submission to the pury of the ones Act claamn against ACBL. was
Clearly erroneous given that no evidence had been presented at trial to
establish that an employment relationship existed between Simko and
ACBL under the “borrowed servant” doctrine. Absent such a relationship
the plaintiffs could not recover against ACBL, under the Jones Act. See
Haskins © Point Towing Co. 421 F 2d Sh2, 5.46 (Sd Cin) cert. denied. 400
US SM (1970) That error was harmless, however. xiven that the pury
found in favor of ACBL, on plaintiffs’ claim: against it Plaintiffs have not
appealed trom the district cocrt’s judgment inc orporating that verdict

Da

The jury returned a general verdict in favor of the plain-
tiffs on their Jones Act and unseaworthiness claims against ©
& ©, in the amount of $61,000.00. The jury found in favor of
ACBL, on the plaintiffs claims, and also found for ACBL, on
its cross-claim against © & © for indemnity. Following a
non-jury trialon the amount of expenses incurred by ACBL
in defending this lawsuit, the court awarded ACBL, $5,794.52
on its indemnity claim.

C&C has appealed from both judgments entered by
the district court, contending, as it did throughout the course
of the trial proceedings, that the evidence presented at trial
was Insufficient to permit the submission of the Jones Act
claim to the jury. Thus, © & © argues that the district court
Should have directed a verdict in favor of the defendants on
that claim and disposed of the unseaworthiness claim with
outa jury on the admiralty side. © & © also argnes that
ACBL’s indemnity claim should have been tried to the court
on the question of © & C's liability to ACBL, that C & ©
should not beheld liable for indemnity in a case in which it
may have been found to have been the owner pro hae vice of
the shipowner’s vessel, and that the amount of expenses
awarded by the court to ACBL, was excessive.

A.

We agree with © & C's contention that the evidence
presented at trial was insufficient to permit the submission of
the Jones Act claim to the jury and that the district court
should have directed a verdict in favor of both defendants
on that claim. See note 3 supra.

This Court has previously held that among the “decisive
elements necessary of proof in determining who is ‘a mem.-
ber of a crew’ within the meaning of the Jones Act” is a re-

Ba

quirement “that the worker be aboard [the ship] primarily
to aid in navigation.” Griffith o. Wheeling Pittsburgh Steel
Corp., 521 F.2d 31, 36 (3d Cir, 1975), cert. denied, 423. U.S.
1054 (1976). The estate’s Jones Act claim was submitted to
the jury on the theory that Simko, at the time of his death,
was a member of the crew of cither ACBL, #2699 or C& C's
crane barge, to which #2699 was moored. Llowever, the evi
dence introduced at trial could not support a jury finding
that Simko was aboard either barge primarily to aidein its
maviggation,

Testimony introduced at trial shows that Simko was
hired by C& Cas alaborer and that his function was to Asyio |
in the cleaning of barges moored to © & C's crane barge. He
shoveled debris from: their interiors, squirted their decks
with water hoses, and helped in carrying pumps and other
equipment used in the cleaning operations. Phere was no
evidence presented to show that in performing those duties
heawvas engaged, at any time, inthe handling or maneuvering
of any barge. Simko was not involved in the transporting of
ACBL, #2699 to C& C's facilities or the mooring of #2699 to
the crane barge. Moreover, neither ACBL, #2699 nor the
crane barge was ever mi motion at any time Simko was
aboard.

In Griffith this Court held that a worker injured while
engaged in loading a barge ata steel mill along the Ohio
River had not been aboard that barge primarily to aid in its
navigation, and thus we affirmed the district court's entry of
summary judgment against the plaintiff on a pones Act
Claim. Yet Griffith testified that he had assisted in the throw
ing of lines from one barge to another while they were being
“rounded.” a procedure utilized in moving loaded barges
away from the seawall We deemed the navigational fune
lions performed by Griffith to be too insignificant to estab
lish seaman status given that his primary duties involved the

‘a

work of a harbor worker, namely, handling cargo. 521 F.2d
at S7-38.

The focus applied by this Court in Griffith to the nature
of the duties performed by the putative Jones Act claimant ts
consistent with the leading Supreme Court opinion in this
area, Senko wv. LaCrosse Dredging Corp... 352. U.S. 370
(1957). There, inreversing a lower court's determination that
the plaintiff “was not ‘naturally and primarily on board [a
dredge] to aid in navigation, ” the Court's majority relied on
testimony presented at trial giving rise to an inference that
the plaintiff was responsible for the dredge’s seaworthiness
and that his duties included the taking of soundings and the
Cleaning of navigation lights when the dredge was in transit.
Id. 372-73. We cannot draw a similar inference from the

record made in this case.

Like Griffith, Simko’s primary duties involved the work
of a harbor worker. The clear import of our opinion in Grif
fith is that a maritime worker who does not actually go to sea
but who is injured while performing duties on a navigable
vessel must establish that he performed significant naviga
tional functions with respect to that vessel in order to recover
under the Jones Act. The record is devoid of any proof that
Simko performed such functions; thus, the district court
erred in denying © & C's motion fora directed verdict on the
estate's Jones Act claim

B.

(7) & © contends that, absent a valid Jones Act claim, the
district court lacked jurisdiction on the civil side over the
unscaworthiness and indemnity claims and that the jury's
verdicts on those claiins have no validity. Thus, appellant
asks this Court to vacate both judgments of the district court
and remand this case fora trial to the court on both claims in
the exercise of its admiraity jurisdiction. We do not find C&
C's jurisdictional arguments persuasive

Sa

There is no question but that the district court had sub-
ject matter jurisdiction over all the claims raised by the par-
ties to this lawsuit. Stripped of its jurisdictional overtones,
(: & C’s contention is that, absent a finding that Simko was a
Jones Act seaman, the district court was precluded from sub-
mnitting the admiralty claims arising out of the accident toa
jury. This argument ignores the effect of the Supreme
Court's opinion in Fitzgerald v. United Statessines Co., 374
U.S. 16 (1963). In Fitzgerald the Court adopted a rule that
requires a Jones Act negligence claim and admiralty claims
for unseaworthiness and “maintenance and cure” arising out
of the same transaction to all be tried to a jury when the
plaintiff so demands. Considerations of judicial economy
and fairness to the litigants led the Court to its conclusion
that such claims should be tried to a single factfinder, and the
Congressional grant of the right toa jury trial to the Jones Act
plaintiff required that that factfinder be the jury. 374 U.S. at
20-21. See Haskins v. Point Towing Co., 395 F.2d 737 (3d Cir.
1968).

In Blake wv. Farrell Lines, Inc., AV7 F.2d 264 (3d Cir.
1969), this Court approved a district court’s consolidation of
a shipowner’s indemnity suit brought in admiralty with a
longshoreman’s civil suit for damages against the shipowner.
We also approved, based on our reading of Fitzgerald, the
district court's direction that all the factual issues in the con-
solidated action, save the amount of counsel fees to be
awarded on the indemnity claim, were to be tried to a jury.
Thus, it is clear that there was no error in the district court's
initial determination in this case that all of the claims pre-
sented should be tried to a jury.

The issue posed by C & C, however, is whether a district
court must remove a case trom the jury's consideration when
a directed verdict should be granted on that element of the
case creating the plaintiffs right to a jury trial. More pre-

Ya

cisely, the appellant asks this Court to vacate a jury verdict
based on admiralty claims when a directed verdict should
have been granted by the district court on the Jones Act
claim that formed the predicate to a jury trial.

The principles articulated in Fitzgerald lead us to reject
C& C's request. Under Fitzgerald, if the jury had found, asa
matter of fact, that Simko was not a Jones Act seaman, C & ©
could not now complain that the jury had no jurisdiction to
find it liable, nonetheless, on the estate's unseaworthiness
claim. Where an appellate court determines that no facts
presented at trial would permit the jury to find that a plain
tiff was a Jones Act seaman, we believe that the policies of
judicial economy and fairness to the litigants identified as the
basis of the Fitzgerald rule dictate a similar result. We
emphasize, as did the Court in Fitzgerald, that while the
plaintiffs and cross-claimant in this case had no right to a jury
trial on their admiralty claims alone, see Rule 38(e), FR. Civ.
P., neither the Constitution nor any statute or rule forbade
the trial of those claims to the jury. See 374 U.S. at 20.

We are not required to decide in this case the question
presented in Mahramas v. American Export Isbrandtsen
Lines, Inc., 475 F.2d 165, 172-73 (2d Cir. 1973). In Mahramas,
a directed verdict for the defendants had been entered on a
Jones Act claim during trial; the district judge then dismissed
the jury and determined the remaining admiralty issues him-
self. The Second Circuit held that Fitzgerald did not pre-
clude such a practice. Significantly, however, the Mahramas
court did not hold that district courts must remove such cases
from the jury's consideration .The practice approved in
Mahramas has been followed by some district courts in this
Circuit, although the contrary practice of submitting admir-
alty claims to the jury following a directed verdict on a Jones
Act claim has also been utilized. Compare Hickman v. Ohio
Barge Line, Inc., 376 F. Supp. 1092, 1094 (W.D. Pa. 1974)

10a

with Dobbins v. Crain Brothers, Inc., 567 F.2d 559, 561 (3d
Cir. 1977).

We note that Professors Gilmore and Black, in charac-
terizing the Mahramas holding as a “narrow” reading of
Fitzgerald, have suggested that “the argument could be
made, not implausibly, that the plaintiff is entitled to a jury
trial on the general maritime law counts, no matter what hap-
pens to the Jones Act count (at least if it is assumed that the
Jones Act count was not frivolous.)” G. Gilmore & C. Black,
The Law of Admiralty §6-9 at 296 (2d ed. 1975). Gilmore and
Black base their suggestion on the terms of the remand from
the Supreme Court in Fitzgerald itself. The Fitzgerald
remand, however, does not require the adoption of the
broad rule they propose. Nonetheless, it supports our resolu-
tion of the issue before us.

In Fitzgerald, the Court remanded for a jury trial the
plaintiff's maintenance and cure claim that had been ad-
versely decided by the district court and affirmed by the
Second Circuit. The plaintiff's Jones Act claim had been
adversely decided by the jury, the judgment incorporating
the verdict had been affirmed by the Second Circuit, and
that judgment had not been reviewed by the Supreme
Court. In the Supreme Court the shipowner-defendant
argued that the remanded maintenance and cure claim, no
longer joined to the Jones Act predicate to a jury trial, could
be tried by the court. sitting without a jury. The Court
rejected that argument, adoptingshe view that the plaintiff
was entitled to relief from the trial court's initial error in de-
nying him a jury trial on the admiralty claim, and that the
appropriate relief consisted of granting him the kind of trial
he would have had but for that error. 374 U.S. at 21-22. The
fact that the plaintiff had been unsuccessful on his Jones Act
claim did not persuade the Court otherwise.

Here, of course, the defendants were entitled to a
directed verdict on the Jones Act claim but the district court

lla

submitted it along with related admiralty claims to the jury.
‘Thus, our case is not controlled by the terms of the remand in
Fitzgerald. Nonetheless, based on the principles articulated
in Fitzgerald, and bolstered by the factual situation pre-
sented therein, we hold that C & C© is not entitled to attack
the jury's verdict on the unseaworthiness and indemnity
claims solely because the district court should have directed
a verdict against the plaintiffs on their Jones Act claim.
C.

We turn then to a consideration of whether C & © is
entitled to relief from the judgments entered against it in this
case for reasons other than those pressed in its “jurisdic-
tional” argument. With respect to the jury’s verdict on the
estate's claim for liability we conclude that ACBL is entitled
to the verdict rendered in its favor but that the judgment
incorporating the jury's verdict against C & C must be
vacated and the case remanded for further proceedings.

None of the parties has challenged the judgment
entered in favor of ACBL on the plaintiffs’ claim but C & C
has contended, based on its “jurisdictional” theory discussed
above, that it must be vacated. Based on our holding in Part
B we reject that contention.

The jury’s verdict against C & © on plaintiffs’ claim,
however, must be set aside. We have ruled that no evidence
was presented at trial from which the jury could find that
Simko was a Jones Act seaman and thus C & C could not be
held liable to the plaintiffs on their Jones Act claim. Our con-
clusion that Simko was not a Jones Act seaman with respect
to either the crane barge or ACBL #2699 would also preclude
plaintiffs’ recovery against C & © on their claim that C & C
was liable for Simko’s death because ef its breach of the
absolute duty to provide seamen aboard its vessels with a
seaworthy ship. Hlowever, the unseaworthiness claim pre-

la

sented by plaintiffs against C & C, and incorporated in the
district court's instructions, also permitted the jury to find ©
& © liable to Simko’s estate on another basis. The jury could
have found that Simko was not employed as aseaman but as
a Jongshoreman, who, nonetheless, was entitled to the
guarantee of seaworthiness while temporarily engaged in a
seaman’s work and exposed to a seaman’s hazards aboard
ACBL, #2699. See Seas Shipping Co. v. Sieracki, 328 U.S. 85
(1946). Furthermore, the jury was instructed that they could
find that GC & ©, and not ACBL, was liable for an unse:
worthy condition on barge #2699 causing Simko’'s accident if
they found that © & © was its owner pro hac vice.

Because the jury returned a general verdict on plaintiffs’
Claim we do not know whether the invalid Jones Act claim
was the sole basis of the verdict or whether the jury found
that Simko was a “Sieracki seaman” with respect to whom ©
& © breached its duty as owner pro hac vice to maintain
ACBL, #2699 in a seaworthy condition! C & C has not pre
sented any argument to this Court that there was insufficient
evidence to support a jury verdict against it on the latter
ground nor has © & © contended that as a matter of law it
could not be held liable on the estate’s unseaworthiness
claim. Vo the contrary, © & © asks this Court to direct that
the unseaworthiness claim be resolved by the district court
on the admiralty side after remand.

"The jury's award of indemnity to ACBE, might ordinarily be thought
to provide some clue as to the basis for the verdict on the plaintiffs’ claim
for lability. However, the district court properly instructed the jury to
pass on that claim evenifthey found that neither of the defendants was lia
ble on the plaintiffs’ Jones Act and unseaworthiness claims See Ellerman
Lines, Ltd 0. Atlantic é> Gulf Stevedores, Ine, 399 F.2d 673, B74-75 (Sd
Cin), cert. denied, 382 U.S. 812 (1965) Therefore, it is possible that the
jury impermissibly decided that Simko was a fones Act seaman employed
by C&C asa member of the crew of its crane barge, that his accident was
caused by © & C's negligence, that C & C's negligence breached its
implied warranty to ACBL, to clean and repair barge #2699 ina workman

like manner, and that ACBL, should be indemnified by C & © for its costs
in defending this lawsuit

3a

This Court has held that “[w]here...a general verdict
may rest on cither of two claims— one supported by the evi-
dence and the other not—a judgment thereon must be re-
versed.” Albergo v. Reading Co., 372 F.2d 83, 86 (3d Cir.
1966), cert. denied, 386 U.S. 983 (1967). In a case similar to
this one, the Supreme Court adopted an identical rule where
the jury's verdict against a shipowner may have been imper-
missibly based on a finding that the decedent occupied the
status of a Sieracki seaman. United New York and New Jer
sey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613,
619 (1959). See Morrissey v. National Maritime Union of
America, 544 F.2d 19, 26-27 (2d Cir. 1976) (the general rule
stated in Halecki and Albergo must be followed unless it can
be stated with confidence that the same verdict would have
been returned even if the invalid claim had not been submit
ted to the jury).

Because the jury's verdict against C & © on plaintiffs’
claim may have rested on a finding that Simko was a Jones
Act seaman, the judgment against C & C must be vacated
and remanded to the district court for further proceedings.
On remand, the district court must first decide whether
Simko was a temporary seaman aboard ACBL, 42699 within
the meaning of Sieracki. If he was, it should then determine
whether C & C was owner pro hac vice of that barge, as that
term has been defined in this Circuit, see Griffith vo. Wheel
ing Pittsburgh Steel Corp., supra, 521 F.2d at 40-41, & nd,
G. Gilmore & C. Black, supra, §§4-20 to 4-24, and whether
Simko's death was attributable to the unseaworthiness of
that barge. Because the claim being remanded to the district
court is based purely on maritime law we find no basis to
require the impanelling of a second jury to decide it. Unlike
the situation presented in Fitzgerald, discussed in Part B
above, ‘plaintiffs were not deprived of their right to a jury
trial during the proceedings below. We leave it to the discre-

tion of the district court to decide whether, in the interests of

substantial justice, it wallmake the findings required by the
terms ob this remandon the present record on grantamotion
by either party to reopen the record for the taking of addi

Hional testimony on the Sieracki claim

We have already held in Part Boabove that the district
courts judgment moorparating the jury os verdict on ACBE Ss
cross claim for idenmnity wallnot be vacated solely because
the Jones Actelaim was improperly submitted to the jury ©
& © does net contend that the distict courts tnstrrctions to
the jury on that claim were a error, butat does contend that,
asaomatter of law. it could not be found liable for tvceranity
to ACBL atthe pury found that the cause of Simko's acerdent
was the unseaworthiness of ACRE, #2688 and that© & © wars
responsible for that unseaworthiness as owner pro hac vice
(WX © bases this contention on the legal theory underlying
the mdemmity action that the stecedore warrants tothe slap
erener that he wall perform his contractual duties ina work
manlike manner © o& © posits that ihitoceupred the status of
shipowner pro hac vice of ACHE, #2699 then its warranty of
workimantke performance in cleaning. and repating that

barge could ran only to itself

COX Cos argument misconstrires the nature and purpose
of the indemmity action Phat purpose is to compensate a
shipowner for any foreseeable lability, imposed or expense
incurred in the defense of a lawsuit brought by a longshore
man ingured aboard its ship when that iyury was pros
mately caused, evenim part, by the stevedore's breach of his
warranty of workimanlike performance See Dobbins t
Crain Brothers, Ine. SOF 8d 559, DOA (Gd Cin, LOTT). The
jury S verdiet on the idenimity claam in this case encom
passed tmpliot findings that & © breached its warranty of
workmanlike performance, that ACBL, did not prevent on
hinder © & © from completing workmanlike performance,
and that Simkos accident was attributable to the breach of ©

la

& Cos warranty. Given these findings it makes no difference
whether the jury found. or whether the court on remand
might find, that & C exercised so great a degree of control
over ACBL ’s barge that it became its owner pro hac vice
Such an assumption of control would not rescind © & ©°s
warranty to ACBL, to clean and repair its barge ina work

manlike manner

(1 & © contends that the district court erred in awarding
ACBL, indemnity for all the legal expenses it incurred in the
proceedings below. In particular, C & C argues that it should
not be held liable for the costs ACBL, incurred in seeking to
impose liability upon © & © for Simko’s death, in resisting ©
& €7s post-trial motions to dismiss for lack of jurisdiction,
and in prosecuting the indemnity claim itself, Inthe context
of this case we believe that the district court did not err in
awarding ACBL, indemnity for its efforts in asserting that ©
& © was liable for Simko's death. That effort was a foresee
able and necessary clement of ACBL ’s defense of plaintiffs
claim. Likewise, the costs incurred by ACBL, in opposing ©
& €'s post-trial motions were directed, at least ino part,
toward preserving its favorable judgment on the plaintiffs:
claim and were properly included in the indemnity award

With respect to one element of the expenses awarded
ACBL, however, we agree that the district court erred. This
Court has held that a shipowner ts entitled to be indemnified
only for those litigation expenses incurred in defending: a
longshoreman’s action, and is not entitled to mdemmity for
the expenses incurred ino prosecuting the indemmity chain
itself, Burris 0. Global Bulk Carriers Ine. 505 Tb 20 VETS, LTS
WS (Sd Cin LOT) The district court did not attempt to deter
mine what portion of the legal fees paid by ACBL, was
devoted to its efforts to recover indemmity from © & © at
trial, nor what portion of the fees paid for post-trial work

was devoted to the protection of its indemnity award. In

IGa

similar situations involving the award of attorney's fees to
seocessful litigants in multiccount claims against multiple
parties we have required that fees be awarded only for those
hours expended ina successful effort to establish liability.
See Baughman v. Wilson Freight Forwarding Co... 583 ¥ 2d
1208, 1214-16 (3d Cir. 1978). Here, we conclude that ACBL,
should be indemnified with an award of attorney's fees only
for those hours expended in defending, plaintiffs’ lawsuit
against it, and not for those hours expended in pursuing and
protecting the indemnity claim itself

Thus, the district court's judgment awarding indemnity
to ACBL for expenses incurred in defending plaintiffs’
action must also be vacated and remanded for further pro
ceedings. On remand, the district court must apportion the
expenses incurred by ACBL, during this lawsuit, and base its
fee award only on those hours that may reasonably be said to
have been devoted to ACBL 's defense of plaintiffs’ claim

IV.

The judgment of the district court entered in favor of
defendant ACBL, on the plaintiffs’ claim will be affirmed.
The judgmen: entered against defendant C & © on that
claim will be vacated and remanded for proceedings con-
sistent with this opinion.

The judgment of the district court entered in favor of
ACBL, on its cross-claim against © & © for indemmity will be
vacated and the matter remanded for proceedings consist
ent with this opinion.

Cannons, Cirenit Judge, concurring and dissenting

If 1 could be persuaded that Simko presented po evi-
dence sufficient to go to the jury on this Jones Act claim. I
would join Cally in Judge Seitz’s opinion forthe court. | agree

7a

that there was insufficient evidence of Simko's status as a
Jones Act seaman in the employ of American Commercial
Barge Lines Company (ACBL), and that there was insuffi-
cient evidence that he was a Jones Act seaman on the ACBL,
barge #2699 or that C & C Marine Maintenance Company (C
& ©) was a pro hac vice owner of that barge. But I believe
that it was proper, on the evidence presented, to submit to
the jury the issue of Simko's Jones Act status as a member of
the crew of the crane barge owned by © & C.

In Griffith vo. Wheeling-Pittsburgh Steel Corp., 521 F.2d
31 (3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976) we out-
lined the four elements required to support a finding that a
plaintiff is, as against a particular defendant, a Jones Act sea-
man. Phe defendant must be plaintiff's employer; the vessel
must be in navigation; the plaintiff must have a more or less
permanent connection with the vessel; and the plaintiff must
have been aboard primarily to aid in its navigation. Hon any
of the four elements the evidence is insufficient to present a
genuine factissue, the Jones Act claim may not be submitted
to the jury. Griffith oo Wheeling-Pittsburgh Steel Corp.,
supra, 521 F.2d at 36-37.

Krom the evidence presented the jury could have found
the following facts. C & © has a landing on the bank of the
Ohio River where it cleans and repairs barges. As disclosed
in plaintiffs’ exhibits PL and P8 (seven photographs and one
diagram), © & C's facilities include five mooring devices
cealled trie-tie clusters) permanently embedded in the bot-
tom of the river, and several floating barges. The office
barge, which is moored between two trie-tie clusters. is
reached from the shore by a long gangplank. Outboard of
the office barge is moored a working barge, on which. along
with other equipment, is a mobile, crawler crane. Barges
turned over to C & C for cleaning and repair are moored out-
board of and foreward and aft of the crane barge. The crane

18a

is used to open the covers of barges for cleaning and to
remove debris from their interiors. Simko was hired on Feb-
ruary 2, 1972 and was assigned to work on the crane barge.
His work was manual labor. including using a broom or
shovel, carrying pumps, and helping with the hoses which
ran from the crane barge and were used to wash down
barges belonging to C & C customers. On the day of his
death Simko was helping to clean the ACBL barge. While
pulling on a hose in order to obtain more slack he lost his bal-
ance and fell into the river. There was no lifeline on the crane
barge near enough to reach him during the brief time he was
afloat before he was swept under a barge moored down-
stream from the ACBL barge.

Applying the Griffith standards to these facts it seems to
me the jury could have concluded that Simko Was a crew-
man on the crane barge. It is not disputed that he was
employed by the owner thereof and the evidence strongly
suggests that it was his regular work station. Thus his connec-
tion with it was sufficiently permanent to satisfy the Griffith
test.

On the twin issues of whether the crane barge was a ves-
sel “in navigation” and whether Simko was aboard to aid in
navigation, the issue is closer. I think, however, that the evi-
dence met these requirements as well. In Senko v. LaCrosse
Dredging Corp., 352 U.S. 370 (1957). the Court held that a
handyman, employed on a dredge which throughout his
employment was anchored to the shore, was covered by the
Jones Act. See also Grimes v. Raymond Concrete Pile Co..
356 U.S. 252 (1958) (pile driver operator on a Texas Tower
permanently affixed to the ocean floor): Butler v. Whiteman,
356 U.S. 271 (1958) (laborer doing odd jobs ona tug that had
been taken out of service). These cases are dispositive. First,
they indicate that Simko’s day to day tasks were sufficiently

19a

“navigational” to bring him within the scope of the Act.! And
all three clearly negate a rule that a vessel must be moving or
at sea in order to meet the “in navigation” requirement. They
are therefore in accord with our definition of that require-
ment in Griffith, where we observed:

As properly construed, the “in navigation” requirement
is used in its broad sense, and is not confined strictly to
the actual navigating or movement of the vessel, but
instead means that the vessel is engaged as an instru-
ment of commerce or transportation on navigable
waters.

521 F.2d at 37. Under Griffith, the question, then, is whether
the crane barge, which was in navigable waters and capable
of movement, was used as an instrument of commerce on
those waters. We have indicated that whether or not a vessel
is in navigation for Jones Act purposes is one ordinarily to be
decided by a jury. Mroz v. Dravo Corp., 429 F.2d 1156, 1165-
66 (3d Cir. 1970). The jury here could have found that the
crane barge, used not only as a mooring for vessels unques-
tionably in navigation, but also as a means for removing the
hatch covers of and debris from those vessels and for clean-
ing and pumping them so as to facilitate their further use in
transportation, was engaged in commerce on navigable
waters.

The majority's argument that Griffith compels a differ-
ent result is, to put it mildly, a strained one. In that case. the
evidence showed conclusively both that Griffith was based
on land rather than on a vessel and that by far the greater por-

'The majority's attempt to distinguish Senko v. LaCrosse Dredging
Corp., supra, is unpersuasive. The duties performed by the “deckhand” in
that case, as recounted by the Court, required him to “clean and take care
of the deck, splice rope, stow supplies, and, in general, to keep the dredge
in shape.” 352 U.S. at 372. The Court stated that from these facts alone, the
jury could infer that the plaintiff was responsible for the seaworthiness of
the vessel. 352 U.S. at 373. The facts of this case are virtually identical. The
facts of the other cases cited, which the majority does not attempt to
answer, are, of course, even more compelling.

20

tion of his work was cargo handling — classically the task ofa
longshoreman, and flatly inconsistent with his claim of se:

man status, See 521 2d at 37-38. In this case, Simko worked
on board a vessel and his duties were fully consistent with
seaman status. Phe resaltin Griffith therefore cannot be con
trolling here

Tam aware that incases construmy the in navigation test
for claims of unseaworthiness, the Supreme Court appar
ently has adopted a somewhat more rigid test than that
adopted in Griffith. See, Roper ev. United States, 368 US. 20
(1961). West eo. United States, 361 US. TIS (1959). Moreover,
as Co& © points out, there are certamly cases from other ci
cuits which suggest a different outcome even under the
Jones Act. See eg., Cook vo. Belden Concrete Products, Ine,
172 2d 999 (Sth Cir, 1973). cert. denied, AVAL S S68 (1973)
(plaintiff was a carpenter on a mobile Hoating construction
platform moored on navigable waters. Held: nota vessel for
Jones Act purposes), but see Barios v. Louisiana Construc
tion Materials Co., 465 F 2d LIST (oth Cir, 1972) (plaintiff, an
oiler ona land based dragline, was injured while loading the
dragline onto a barge. Held: Jones Act question properly left
to jury)

There are good reasons, however, for rejecting the
approach of those cases. First, the facts of the Supreme
Court's own Jones Act decisions, which are controlling here,
are flatly inconsistent with the approach adopted by the
majority. As a purely formal matter, West and Roper are
therefore not controlling. Nor is their logic persuasive in this
situation, since both cases rest fundamentally on the notion
that it is unfair to hold a shipowner of a vessel that has been
withdrawn from maritime service to the standard of strict
liability imposed by the seaworthiness doctrine. See 36LULS.
at 122. That concern is, of course, absent in ones Act cases
Finally, insofar as these cases support any restriction upon
the “in navigation” standard, it is clearly not the one which
the majority relies upon. Indeed, in the Sicracki seaman con:
text, the Supreme Court appears to have rejected a similar

Qla

“in navigation” test based on “the specific type of work that
each. ..[ workman] is doing on shipboard at the moment of
injury.” on the ground that “[t]he job analysis which |that
inquiry} would call for would lead to fortuitous results.”
West vo. United States, supra, 361 US. at 122. The same
objection applies here. Simko’s maintenance duties were as
meaningful to the “navigation” of barges upon which he
worked and with which he dealt as the duties of his col
leagues on the landing barge who were assigned to handle
the mooring lines, or the duties of the handymen who were
permitted to take their claims of seaman status to the jury in
Senko wv. LaCrosse Dredging, supra, and Butler vo. White
man, supra. No reason of policy or precedent suggests the
need for a different result here. | therefore conclude that
there was sufficient evidence to submit to the jury the theary
that Simko was a Jones Act seaman on the crane barge

Since a directed verdict should have been granted on
the claim that Simko was a Jones Act seaman on the ACBL,
barge, and we cannot tell whether the jury predicated its ver
dict against © & © on that theory, Lagree with the majority
that the judgment should be vacated. But on remand, sinc
Simko’s administrator established a prima facie case of Jones
Act status on the crane barge, | would grant a new trial
before a jury on that claim as well as the admiralty claim

A ‘True Copy:
Teste:

Clerk of the United States Court
of Appeals for the Third Circuit

99,

wail

APPENDIX B

IN Tie
Unrrep States Distaicr Courr
horn Tine Western Distatcr or PENNSYLVANIA

JOEN Ro SIMKO, ’
Administrator of the Estate of
JON Ro SIMKQ, TIE, Deceased
and LUBLLA CAMPBELL
MILDER, on behalf of JOLIN BR.
CAMPBELL, a minor,

Plaintiffs, Civil Action
* No. 74-172

(1 & © MARINE MAIN.
TENANCE CO... a corporation:
AMERICAN COMMERCIAL,
BARGE LINES COMPANY,

a corporation,

Defendants. )
MEMORANDUM AND ORDER

Some three years after its commencement, and over a
year after a jury awarded plaintiffs a total of $61,000 against
defendant © & © Marine Maintenance Co., the above-cap
tioned case is before the Court on a threshhold question of
jurisdiction

That such a question should be a matter of serious con-
cern at this late stage is plainly unfortunate. Nonetheless,
defendant © & © has continually challenged the Court's
Jones Act jurisdiction in this matter, and while | have pre-
viously denied C & C's motions for summary judgment and
for judgment NOV. Thave done so without addressing the
jurisdictional issue.

23a

On both prior occasions, the issue was in fact consid-
ered: summary judgment was denied under Rule 56 because
of material factual disputes bearing decisively on the dece-
dent's legal status and, therefore, on the question of jurisdic-
tion; C & C's post-trial motion was denied because the Court
felt that the jury's verdict, viewed in the light most favorable
to plaintiffs, supplied the factual basis for the Court's exer.
cise of jurisdiction on the civil side under the Jones Act.

I have now reviewed this matter with some care, not sua
sponte, but after consideration of a pleading filed by C & C
and styled “Request for Clarification of the Basis on which
this Court is Exercising Jurisdiction.” Upon reconsideration
of the jurisdictional issue, and of the arguments set forth in
the many briefs filed by the parties throughout these pro
ceedings, | am compelled to conclude in fairness that our
initial view in this matter was erroneous and that C & © is
correct in its assertion that, despite these lengthy proceed
ings, there as yet exists no identifiable factual determination
which might supply a basis for jurisdiction on the civil side.
Accordingly, confronted with a situation creating only un
pleasant alternatives, | will revoke the Court's Order of May
2. 1977, denying defendant C & C's posttrial motions, and set
this matter down for further proceedings.

A detailed review of the specifics of this litigation would
serve no useful purpose at this juncture. Viewed in the ilhumi-
nation of hindsight, our present problem is neither complex
nor intricate; it is, rather, a matter of a broad defect in these
proceedings resulting from, inter alia, the Court's failure to
submit special interrogatories to the trial jury. Uhis is explica-
ble in general terms.

The Court took a general verdict in this case. Vhe jury,
inter alia, awarded $15,000 to the administrator of the dece
dent's estate and $46,000 to his child. Briefly stated, the prob-
lem is that, without more, this general verdict is insolvably

2da

ambiguous: as © & © has insisted, under the Court's instruc
tions the award might have been based on acceptance of
either of two sets of fact, one constituting plaintiffs’ dece-
dent a Jones Act seaman and the other defining his status as a
so-called “Sieracki seaman” employed by a vesselowner pro
hac vice. Hf the former, there exists no jurisdictional prob
lem: if the latter, however, the Court would lack Jones Act
jurisdiction and thus would have exceeded its powers in this
case by conducting a jury trial on the civil side. In the
absence of special interrogatories and answers thereto, there
is simply no possible way to determine from the general ver-

dict the factual underpinnings of the jury's award.

We repeat that, under the Court's instructions, plaintiffs’
decedent might have been found by the jury to have been a
Jones Act seaman — a member of the crew of defendant C &
C's so-called landing or crane barge. Despite C & C's vigor-
ous argument to the contrary, we adhere to the view that
such a finding would have been legally permissible in that
the landing barge arguably was capable of characterization
in these circumstances as a vessel in navigation. See, gener
ally, Griffith vo. Wheeling-Pittsburgh Steel Corp., 521 F.2d
31,37 (3d Cir. 1975). Thus, we continue to reject C & C's con-
tention that no principled evaluation of the evidence could
result ina finding that the decedent was a Jones Act Seaman.
Inimy view, such a finding would not be patently unreasona-
ble; and of course it would obviate any question of a jurisdic:
tional defect herein.

But, as we have noted, the factual determination in
question cannot fairly be inferred from the verdict or from
any other part of the record in this case. Indeed, it is equally
possible that the decedent) an employee of defendant © &
C)) might have been found by the jury to have been a Sieracki
seaman doing the work of a seaman on a vessel (ACBL,
2699) then owned pro hac vice by C & C. a company

25a

engaged in the business of cleaning and repairing barges
actually owned by others.' Under the Court's instructions,
the jury was permitted to base its award entirely upon sucha
finding. This was erroneous: it improperly assumed the
existence of that Jones Act jurisdiction which would permit
the jury to try pendent admiralty and maritime claims. See
Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963). But
the existence of jurisdiction under the Jones Act turns on the
determination of factual questions which here remain unre-
solved; absent such jurisdiction—the requisite factual under-
pinnings of which cannot be culled from the record and
remain undetermined or at least not discernable in the gen-
eral verdict—the Court lacked power to conduct a jury trial
on the civil side. See generally, F.R. Civ. P. 38(e).

Thus, as we have had no clear resolution of those ques-
tions determinative of a factual basis vel non for a principal
finding of Jones Act jurisdiction, the defect in these proceed-
ings is apparent. While it is quite frankly tempting for the
Court to move to cure that defect at this time by purporting
to make the factual findings bearing on a determination of
Jones Act seaman’s status, | do not believe that such an
endeavor would be proper in these circumstances. Our view
is that the evidence permitted the jury to assign either Jones
Act or Sieracki seaman status to the decedent— either con-
clusion would have been legally permissible. The question is
one of fact. As such, it is not properly-a matter for resolution
by the Court, but is the province of the fact finder, here a
jury.

Unfortunately, we must acknowledge our failure in the
first instance to extract from the jury the specific factual
hasis for its verdict. Having failed to do this at trial of this

1 & C describes as “palpably preposterous” the theory that it was the

owner pro hac vice of barge ACBL, 2699. T do not agree. In this general
regard, see Blair vo. US. Steel, 444 F.2d 1390 (3d Cir, 1971)

26a

action, however, it becomes necessary once again to submit
toa proper fact finder the factual questions determinative of
the decedent's status and the Court's Jones Act jurisdiction.
The result may operate to cure the present defect in these
proceedings; in any event, *t will decide the posture of the lit-
igation and the relationship among the parties, and will gov-

ern the course of any future proceedings.

Accordingly, as previously stated, LT will revoke my
Order denying © & C's post-trial motions and set this matter

down for an early jury trial on the limited factual issue of

whether vel non plaintiffs’ decedent was a Jones Act seaman
at the time of his death. The result will settle this persistent
question, and T can conceive of no fairer way to proceed at
this point. Undoubtedly, this procedure promises some con
sequential inconvenience for all concerned. But a valid reso-
lution of the questions of fact determinative of the instant
jurisdictional issue is crucial toa justand legal final adjudica
tion of this matter.

An appropriate Order will issue.

/s/ Thonenr L. Perrennauns
Hubert Lo Teitelbaum
United States District Judge

27a

ORDER

Anp Now, to-wit, this 9th day of September, 1977, in
accordance with the foregoing memorandum of decision in
the above-captioned case, It Is Orperep that this Court's
Order of May 2, 1977, be and the same is hereby revoked,
and. further, that a jury be empanelled to determine the
unresolved factual issues pertinent to the existence vel non of
the Court's jurisdiction on the civil side in this litigation.

Ir Is FurtHER Ornperen that a conference in the above-
captioned case will be held Wednesday, September 28, 1977
at 9:30 A.M., Courtroom No. 12, 1036 U.S. Post Office and
Courthouse, Pittsburgh, PA 15219. At that time, the parties
and the Court will consider the scheduling of the fortheom-
ing jury proceeding and, in addition, the precise nature of
the factual issues to be decided therein.

__/s/ Wysent 1 Terrensaum
Hubert 1. Teitelbaum
United States District Judge
coptes to:
Stanley M. Stein, Esquire
Feldstein, Bloom, Grinberg, Stein & McKee
Law and Finance Building
Pittsburgh, PA 15219
Bruce R. Martin, Esquire
1447 Oliver Building
Pittsburgh, PA 15222

John W. Jordan, IV, Esquire

Thomson, Rhodes & Grigsby

1724 Frick Building
Pittsburgh, PA 15219

28a
APPENDIX C
IN THe
For THE WesTERN District OF PENNSYLVANIA

JOHN R. SIMKO, q
Administrator of the Estate of
JOHN BR. SIMKO, IIT, deceased
and LUELLA CAMPBELL
MILLER, on behalf of JOHN RB.
CAMPBELL, a minor,

Plaintiffs,

Civil Action
v. No. 74-172

C& C MARINE MAIN-

TENANCE CO., a corporation;

AMERICAN COMMERCIAL

BARGE LINES COMPANY,

a corporation,

Defendants. )
MEMORANDUM OPINION AND ORDER

Plaintiffs brought this action to recover for the death of
John R. Simko, HL, which occurred on March 11, 1972, when
he fell from the stern of a barge upon which he had been
working.

The case was tried to a jury and resulted in verdicts in
favor of the barge owner, American Commercial Barge
Lines Company (hereinafter referred to as “ACBL”) and
against the decedent's employer, © & C Marine Mainte-
nance Co. (hereinafter referred to as “C & C”) on both plain-
tiffs’ claim and ACBL’s crossclaim for indemnity.

After trial C & C filed a motion for judgment N.O.V.
and a motion for anew trial as to the crossclaim or for dismis-
sal thereof. Both motions were denied by Order of Court
entered on May 2, 1977.

29a

Before the case was submitted to the jury it had been
agreed that, in the event of a verdict favorable to ACBL on
its crossclaim, the amount recoverable would be determined
by the Court sitting without a jury.' The non-jury hearing to
liquidate the amount of ACBL’s crossclaim was held on
October 14, 1977. After a review of the testimony taken in.
that hearing, we make the following findings as required by
Federal Rule of Civil Procedure 52(a).

From the beginning of the case until the end of trial
ACBL incurred legal expenses of $4,748.92. ACBL incurred
further legal expenses of $1,065.60 in opposing C & C's post-
trial motions. The total legal expenses incurred by ACBL
were reasonable? It is further found that counsel for ACBL,
exercised the proper and normal quality of work in this case
and that ACBL’s legal expenses were incurred on an hourly
basis. Therefore, ACBL’s total legal expenses of $5,794.52
will not be adjusted for either contingency or quality.

ACBL is entitled to indemnity for all of its legal
expenses incurred from the beginning of the case through
opposition to C & C's post-trial motions in the amount of
$5,794.52. ACBL’s right to indemnity arises from C & C's
breach of the warranty of workmanlike service. Ryan Steve-
doring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124
(1956). As stated in Ellerman Lines, Ltd., v. Atlantic & Gulf
Stevedores, 339 F.2d 673, 674 (3d Cir. 1964):

“If conduct of... (stevedore)...in violation of its war-
ranty to...(shipowner)...was the sole responsible
cause of...(longshoreman’s) injury,...the expense to
which... (shipowner)...is subjected) in’ defending
...(longshoreman’s).. .suit against it to recover for that
injury is an element of damage caused by the. . . (steve

"Trial Tr., p. 200-201

°C & © does not challenge the reasonableness of the legal expenses

but rather contests the elements properly recoverable under the cross-
claim.

30a

dore’s)... breach of warranty, even if... (shipowner)

- = in defeating. ..(longshoreman’s)...

claint.”
The objective of the warranty of workmanlike service is to
place “the burden ultimately on the company whose default
caused the injury.” Italia Societa v. Oregon Stevedoring Co.,
376 U.S. 314, 324 (1964). The jury in the case sub judice
determined that C & C was the party responsible for the
death of John R. Simko, IL.

Accordingly, ACBL is entitled to indemnity in the
amount of $5,794.52.'

An appropriate Order will issue.

/s/ Wupsert lL. Terrenpaum

Htubert I. Teitelbaum
United States District Judge

‘Both © & C’s motion to dismiss and its motion for judgment N.O.V.
were based on the assertion that the jury did not have jurisdiction to decide
the questions presented. Therefore, C & C's post-trial motions jeopard-
ized both ACBL’s unliquidated judgment for indemnity and the judgment
in its favor on plaintiffs’ claim. In opposing the post-trial motions ACBL
was defending both decisions and is, therefore, entitled to indemnity not
only for expenses through trial but also for post trial expenses. See Reipepi
v. The American Insurance Co., 349 F.2d 300 (3d Cir. 1965).

3la
ORDER

Anpb Now, to-wit, this 30th day of November, 1977, in
accordance with the foregoing Opinion, It Is Orperep that
the amount of ACBL’'s crossclaim for indemnification
against C & C be and hereby is found to be $5,794.52..

/s/ Hupert I. Terretpbaum

Hubert I. Teitelbaum
United States District Judge

copies to:

Stanley M. Stein, Esquire
707 Law & Finance Building
Pittsburgh, PA 15219

Bruce R. Martin, Esquire
2525 Oliver Building
Pittsburgh, PA 15222

John W. Jordan, IV, Esquire
1724 Frick Building
Pittsburgh, PA 15219

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0220%3A1. Public record. Not legal advice.