Petition — Bisso Towboat Co. v. Bazile

oe mee

Burrsme Court, U.& -

FILED

MAY 13 1980

MICHAEL RODAK, JR., CLERM

IN THE

‘

Supreme Court of the United States

OCTOBER TERM, 1979

No 79-1806

Dac

— LEO BAZILE,

Respondent,

ee

a

versus i,

BISSO TOWBOAT COMPANY,

Petitioner.

—_—— ———-

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WINSTON EDWARD RICE

1300 Hibernia Bank Building

New Orleans, Louisiana 70112

Telephone: (504) 566-1311

and

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS

Attorneys for Bisso Towboat

Company, Petitioner

SCOFIELDS' QUALITY PRINTERS. P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

oe

TABLE OF CONTENTS

Page

EE IO 5 oo oes bunks onect ced abeds cus 1

NE EE Ne en e565 kv es ad ease nsecbevsd ove 2

oF ee By 2 oy > 0 i nr 2

CONSTITUTIONAL PROVISIONS AND

oP vile s 8 6 8) >t Ee 2

ee POET GPP FEU GAGS 50 icciccccvewesece 4

A. Facts necessary to argument of the

ETT PEEPS PT ECR TS EET LTT ATER 4

B. Course of proceedings and disposi-

oe Ge Perper eo eee 7

ees vv esac ews’ 10

I. The Fifth Circuit’s Decision Is Con-

trary To This Court’s Holding In Senko

v. Lacrosse Dredging Corporation ............ 10

Il. The Fifth Circuit’s Decision Fails To

Take Into Account The Jurispruden-

tial History And The Relationship Be-

tween The Jones Act And The Federal

Employers Liability Act ............... 11

Ill. The Fifth Circuit’s Application of

Lavender v. Kurn To The Issue Of Sea-

man’s Status Prevents A _ District

Judge From Exercising Control Over

Determination Of Its Jurisdiction ....... 15

ii

TABLE OF CONTENTS (Continued)

IV. The Fifth Circuit’s Decision Is In Con-

flict With The Treatment Accorded

The Status Issue In All Other Cir-

IV. Bazile’s Claim Is That Of An Injured

Longshoreman And Therefore Com-

pensable Under The Longshoremen’s

And Harbor Workers’ Compensation

See pe EE ae

TABLE OF CASES

Baker v. Texas & Pacific R. Co., 359

UG. 227 CROGI ee eidc cass.

Baltimore and O.R. Co. v. Postum, 177 F.2d 53

(D.C. Cie, Se ae ek.

Brady v. Southern Railway Co., 320 U.S. 476

(1943) . .. cn Skene eEIbe hea cass

Burns v. Anchor-Wate Co., 569 F.2d

732 (Stix Ce. Ba ee ir ac tecscse.

Page

TABLE OF CASES (Continued)

Page

Executive Jet Aviation, Inc. v. City of

Covdand, 4090: U3. 200 CIGFS) os cv wccedencccds 16

Gunning v. Cooley, 281 U.S. 90 (1930) ............. 12

Hogan v. U.S., 325 F.2d 276 (Sth Cir. 1963) ....... i

Holland v. Allied Structural Steel Co., Inc., 539 F.2d

476, reh. and reh. en banc denied (1976), cert.

den: 229 CES. TIGG CISGT a ss kb vccen ows 0a 18,19

Keener v. Transworld Drilling Co., 468 F.2d 729

ee as SI Gs bc Oa eee ewa oh as es ee ees bows 18

Lavender v. Kurn, 327 U.S. 645 .......... 11-15,19-21

M. C. Carlisle and Co. v. Cross, 386 F.2d

CFE GRE. FN 6.06 eG ae 12

Offshore Co. v. Robison, 266 F.2d 769

Ce Ce. Se rib se nea edee ak Cee enh rks 14

O'Neill v. W. R. Grace & Company, 410 F.2d 908

(Sth Cis. 2969) oh. den. CEGGB) co ccc cesses oeves 17

Owens v. Diamond M Drilling, 487 F.2d

FE GT: BOT . 6 85 cacCaeascoeee i ks cases tee 18

Panama Railroad Co. v. Johnson, 264 U.S.

TUS CEOS dv ssa ne Cees a ee ca aa 15

Reuter v. Eastern Airlines, 266 F.2d 443

(Ra Oe: BO Ge i cco take os ca eke ae decebon ss 12

Senko v. Lacrosse Dredging Company, 352

SE BIO COO hie hs eos coe wanes cas 10,11,19

iv

TABLE OF CASES (Continued)

Page

Wells v. Warren Co., 328 1'.2d

ee i as eae ee eeeene 12

OTHER AUTHORITIES

Article III, Section II of the

United States Constitution ............. 2,3,15,16

Tre poms Act, 46 USC SGS8 .. we ccanicccscsss passim

Longshoremen’s and Harbor Workers’ Com-

pensation Act, 33 USC §§901-50 ....3,4,16,21,22

Moore, Federal Practice, Section 5007[2], page

DN ee Sea ae 17

2A, Moore, Federal Practice, Section 8.09[2],

ne BOO (EU OG. BIGG) 6 occas cess ences wees 15

The Admiralty Extension Act,

eee rr ee eT eee ee 16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

LEO BAZILE,

Respondent,

versus

BISSO TOWBOAT COMPANY,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Bisso Towboat Company, prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit, entered in these proceedings on Novem-

ber 8, 1979.

OPINIONS BELOW

The opinion of the Fifth Circuit, entered on Novem-

ber 8, 1979, is reported at 606 F.2d 101 (Sth Cir. 1979).

It is reprinted in Appendix A hereto at page 1a, infra.

2

Rehearing and Rehearing En Banc were denied on Feb-

ruary 14, 1980, as reported at 613 F.2d 314.

The District Court for the Eastern District of

Louisiana issued an unreported minute entry on

December 17, 1976, which is reprinted in Appendix B

hereto at page 10a, infra.

JURISDICTION

The judgment of the Fifth Circuit was rendered on

November 8, 1979. Rehearing and Rehearing En Banc

were denied on February 14, 1980 as reprinted in

Appendix D hereto at page 27a, infra.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

Petitioner presents for review the following issue:

1. Whether the Fifth Circuit erred in holding that a

lay jury rather than the District Court is to be the sole

trier of fact with respect to determination of the pres-

ence or absence of the District Court's jurisdiction over

the subject matier before it.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Article III, Section II of the Constitution of the Unit-

ed States provides in pertinent part:

3

The Judicial Power shall extend. . .toallcases

of admiralty and maritime jurisdiction. . .

46 U.S.C. §688, known as the Jones Act, pro-

vides:

Any seaman who shall suffer personal in-

jury in the course of his employment may, at

his election, maintain an action for damages at

law, with the right of trial by jury, andinsuch

action all statutes of the United States modi-

fying or extending 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 such personal

injury the personal representative of such sea-

man may maintain an action for damages at

law with the right of trial by jury, and in such

action all statutes of the United States con-

ferring 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.

33 U.S.C. §§901-50, known as the Longshoremen’s

and Harborworkers’ Compensation Act, as amended in

1972, provides in pertinent part:

§903(3) The term “employee” means any

person engaged in maritime employment, in-

4

cluding any longshoreman or other person en-

gaged in longshoring operations, and any

harborworker including a ship repairman,

shipbuilder, and shipbreaker, but such term

does not include a master or member of acrew

of any vessel, or any person engaged by the

master to load or unload or repair any small

vessel under eighteen tons net.

and

§903(a) Compensation shall be payable

under this chapter in respect of disability or

death of an employee, but only if the dis-

ability or death results from an injury occur-

ring upon the navigable waters of the United

States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine rail-

way, or other adjoining area customarily used

by an employer in loading, unloading, repair-

ing, or building a vessel) . . .

STATEMENT OF THE CASE

A. Facts necessary to argument of the

issues.

Petitioner, Bisso Towboat Company (hereinafter

sometimes referred to as “Bisso”), came into existence

in 1967. At that time, Captain Billy Slatten became

5

Bisso’s first general manager, a position he continues to

hold. Under Slatten’s supervision, the company ac-

quired six vessels which it operated in and about the

Port of New Orleans.! The operation of this fleet of

vessels required Bisso to have three offices. One was

located on the Mississippi River where the fleet was

maintained; the bookkeeping office was a mile or so

away; and the third office was in downtown New

Orleans.?

Respondent, Leo Bazile, was first hired by Bisso on

June 20, 1970. Bazile was assigned various tasks for

Bisso, which were limited to handling shoreside

errands,? going to the bank, ordering groceries,‘

carrying various documents between the three

offices,*, working for Captain Slatten’s sporting goods

store,” answering the telephone,’ and procuring parts

for the vessels in the Bisso fleet.? At no time was Bazile

1 Transcript, page 32, lines 7-10; reprinted herein in Appendix

C, page 19a.

2 Id. page 32, line 25; page 33, line 1; page 99, lines 12-15, page

273, lines 19-22; reprinted herein in Appendix C, pages 19a-20a.

3 Id. page 34, lines 11-16 and 23-24; page 100, lines 3-4; reprint-

ed herein in Appendix C, page 20a.

4 Id. page 34, line 15; page 57, line 5; page 100, lines 3-9; reprint-

ed herein in Appendix C, page 21a.

5 Id. page 57, lines 17-21; reprinted herein in Aap C, page

21a.

6 Id. page 273, lines 19-22; reprinted herein in Appendix C, page

22a.

7 Id. page 100, lines 16-21; reprinted herein in Appendix C, page

22a.

8 Id. page 101, lines 21-23; reprinted herein in Appendix C, page

22a.

9 Id. page 57, line 5; reprinted herein in Appendix C, page 22a.

|

a,

6

regularly assigned to any vessel or group of vessels in

the Bisso fleet.

Bazile’s compensation for the work he performed

was fixed at $600.00 per month and was not depend-

ent upon the number of days or hours he worked

during any pay period.!° Bazile slept at home and was

provided a company car to assist him in his tasks.1! The

captains, deckhands and engineers employed by Bisso

worked a schedule of forty-eight hours on and forty-

eight hours off, and all were paid an hourly rate.12

Bazile dressed in a coat and tie while about his appoint-

ed rounds.13

Bazile testified that his duties were primarily those

of a deckhand and that he spent eighty to ninety per-

cent of his time on the various Bisso vessels. Never-

theless, Bazile could name only four persons with

whom he had worked on the various vessels, two of

whom he was forced to admit worked ashore.!4

Furthermore, when asked to identify each vessel in the

fleet and to state whether he had worked on it as a

10 Id. page 23, lines 10-16; reprinted herein in Appendix C, page

23a.

11 Id.

12 Id. page 276, line 11; page 277, lines 1-3; reprinted herein in

Appendix C, page 23a. |

13 Id. page 244, line 14; page 274, lines 11-13; page 314, lines 19-

21; page 319, line 6; reprinted herein in Appendix C, pages 23a-

24a.

14 Id. page 112, lines 17-20; page 115, lines 10-17; reprinted

herein in Appendix C, pages 24a-25a.

7

deckhand, Bazile could name only two or three iso-

lated occasions that he did any work aboard any vessel

in the many years he had been with the company.15

Even then, Bazile had to admit under cross-examina-

tion that he was basically a passenger rather than a

crewmember.

B. Course of proceedings and disposition of

the case.

Bazile filed suit against Bisso in the United States

District Court for the Eastern District of Louisiana,

alleging that he was a member of the crew of the M/V

CABB, that he had suffered injury on April 15, 1973,

and that he was therefore entitled under the Jones

Act!¢ to damages in the amount of $900,000.00. A sec-

ond cause of action under the General Maritime Law

warranty of seaworthiness was also alleged.

On December 13 and 14, 1976, the case was tried be-

fore ajury. At the close of Bazile’s case, Bisso moved for

a directed verdict. The District Court took the motion

under submission, and, after consideration, denied the

motion without prejudice to Bisso to reurge it at a later

point in the trial.

15 Page 103, line 21 to page 104, line 2; page 104, line 25; page

105, lines 5, 17-22; page 106, lines 4-13, 18-19, 21; page 107, lines

5, 11-17; page 109, lines 18-19; reprinted herein in Appendix C,

pages 2S5a-27a.

16 46U.S.C. §688.

’%

At the close of all the evidence, Bisso again moved for

a directed verdict on the issues of Jones Act status, neg-

ligence and unseaworthiness. The District Court de-

nied the motions on status and negligence, and grant-

ed the motion on the issue of unseaworthiness.

Following closing arguments, the jury retired tocon-

sider the evidence, and after two and one-half hours of

deliberation, it returned a verdict for Bazile, finding

that he was a seaman under the Jones Act, and that

Bisso’s negligence was the sole cause of his injury.

After dismissal of the jury, Bisso moved for a judg-

ment notwithstanding the verdict, and, in the alterna-

tive, for a new trial. The District Court orally granted

the motion for judgment notwithstanding the verdict

and took the motior for a new trial under submission.

On December 17, 1976, the District Court issued the

opinion reprinted herein in Appendix B at page 10a

infra in which it set forth its reasons for granting the

judgment notwithstanding the verdict, and also grant-

ed the motion for a new trial conditioned on the re-

versal by the appellate court of its granting of a judg-

ment notwithstanding the verdict. The basis for grant-

ing the new trial was that the jury verdict was con-

trary to the great weight of the evidence.

The United States Court of Appeals for the Fifth Cir-

cuit reversed the judgment notwithstanding the ver-

dict and affirmed the grant of a new trial. In so doing,

the Fifth Circuit first correctly stated that:

The standard for granting a motion for a

judgmer.t notwithstanding the verdict re-

quires that the trial court review all the evi-

dence in the light most favorable to the oppo-

nent of the motion and if the trial court still

finds that the facts and inferences point so

strongly and overwhelmingly in favor of one

party that reasonable mencould not arrive at a

contrary verdict, the motion for a judgment

notwithstanding the verdict should be grant-

ed. Boeing Co. v. Shipman, 411 F.2d 365 (Sth Cir.

1969).

Having accurately set forth the general rule for deter-

mining the propriety of granting a judgment notwith-

standing the verdict, the Fifth Circuit then, Bisso sub-

mits incorrectly, announced:

It is also true that under Lavender v. Kurn, 327

U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1945) the

trial judge in a Jones Act case is bound by a

stricter rule — only when there is a complete

absence of probative facts supporting the ver-

dict can he grant a motion for a judgment not-

withstanding the verdict. 372 U.S. at 653, 66

S.Ct. 740.

Bisso then filed Petitions for Rehearing and Rehearing

En Banc, asserting that the Fifth Circuit had grossly

misstated the standard applicable to the jurisdictional

status issue in Jones Act cases, with the result that Dis-

10

trict Courts in the Fifth Circuit are now completely

interdicted from defining the parameters of federal

subject matter jurisdiction in cases alleging Jones Act

seaman’s status. Both petitions were denied on Feb-

ruary 14, 1980 as reprinted herein at page 27a, infra.

ARGUMENT

I. The Fifth Circuit’s Decision Is Contrary

To This Court’s Holding In Senko v. Lacrosse

Dredging Corporation.

The essence of this atgument is very simple — this

Court has declared that a jury’s determination as to

_Jones Act seaman’s status is conclusive only if a reason-

able basis supporting it exists, but the Fifth Circuit has

now held below that a reasonable basis is not necessary

to support a jury’s jurisdictional finding as to status.

Specifically, in Senko v. Lacrosse Dredging Company,'’ this

Court reversed a state appellate court’s ruling that

there was insufficient evidence to support the jury’s

finding of seaman’s status. In so doing, this Court de-

clared that:

Whether an injured person [is] a“member of a

crew” is to be left to the finder of fact [means]

that juries have the same discretion they have

in finding negligence or any other fact. The

essence of this discretion is that a jury's decision

17 352 U.S. 370, 1 L.Ed.2d 404, 77 S.Ct. 415 (1956).

11

is final if it has a reasonable basis, whether or not

the appellate court agrees with the jury’s esti-

mate. 352 U.S. at 374. (emphasis supplied).

The “reasonable basis” jurisdictional standard of the

Senko test contrasts sharply with the liability and dam-

ages standard set forth in Lavender v. Kurn, supra, which

held that “[o]nly when there is a complete absence of proba-

tive facts to support the conclusion reached [by the jury]

does a reversible error appear.”!8 (emphasis supplied)

Rather, the standard set forth by this Court in Senko for

jurisdictional determinations allows the District Court

the needed latitude to weigh the evidence to the extent

of determining if reasonable minds could find a plaintiff

to be a seaman and member of the crew, and then to

determine the presence or absence of its subject matter

jurisdiction as a matter of law.

Because the Fifth Circuit ignored the Senko decision

and actually announced a contrary rule of law for juris-

dictional determinations, Bisso submits that this

Honorable Court should reverse the decision below to

the extent that it is inconsistent with Senko.

Il. The Fifth Circuit’s Decision Fails To

Take Into Account The Jurisprudential

History And The Relationship Between

The Jones Act And The Federal Employ-

ers Liability Act.

18 327 US. at 653.

12

The Fifth Circuit apparently assumed incorrectly: (1)

that the Lavender “scintillalany evidence” test applies to

every Federal Employers Liability Act (FELA) issue, and

(2) that this test must also apply to all Jones Act issues

because of the incorporation of FELA by the Jones Act.

Given that Lavender was a FELA case and that the Jones

Act does basically incorporate FELA, the assumptions

made by the Fifth Circuit at first blush seem reason-

able. Nevertheless, further examination reveals that

both assumptions are erroneous.

First of all, the Fifth Circuit failed to observe the ob-

vious implications of the prior jurisprudence. Specific-

ally, sixteen years before Lavender, this Court ended the

reign of the “scintilla” rule in Gunning v. Cooley19, which

held that:

A mere scintilla of evidence is not enough to

require the submission of an issue to the jury.

The decisions establish a more reasonable rule

“that in every case, before the evidence is left

to the jury, there is a preliminary question for

the judge, not whether there is literally no evi-

dence, but whether there is any upon which a

19 281 US. 90 at 94 (1930). See also Brady v. Southern Railway Ce.,

320 U.S. 476, (1943); M. C. Carlisleand Co. v. Cross, 386 F.2d 672 (1st

Cir. 1967); Wells v. Warren Co., 328 F.2d 666 (Sth Cir. 1964); Hoganv.

U.S., 325 F.2d 276 (Sth Cir. 1963); Reuter v. Eastern Airlines, 226 F.2d

443 (Sth Cir. 1955); Baltimore and O.R. Co. v. Postom, 177 F.2d 53

(D.C. Cir. 1949).

13

jury can properly proceed to find a verdict for

the party producing it, upon whom the onus

of proof is imposed.” (citing cases)

This Court then resurrected the “scintilla” test, or a

facsimile thereof which we will call the “scintilla/any

evidence” test, in Lavender which held that “there was

sufficient evidence of (FELA) negligence on the part of

both [defendants] to justify the submission of the case

to the jury and to require appellate courts to abide by

the verdict rendered by the jury,” and that “[o]nly

when there is a complete absence of probative facts to

support the conclusion reached [by the jury] does a re-

versible error appear.”2° (emphasis supplied) The ob-

vious implication from this Court’s abolishing the scin-

tilla rule and then giving it renewed life as to FELA neg-

ligence is that Lavender’s application should be restrict-

ed to situations in which the issue at hand is a stricter,

statute dictated duty of care or lesser burden of

proof, and that the general “reasonable basis” rule

should continue to apply to all other, and especially

jurisdictional, issues in those and other cases.

Bisso submits that the Fifth Circuit acknowledged

that Lavender was a FELA case and that the Jones Act in-

corporates FELA, and therefore applied Lavender to the

Jones Act status issue. The Fifth Circuit failed to notice

that Lavender dealt only with the issue of negligence,

20 327 US., at 652, 653.

14

which is accorded special treatment under FELA and

the Jones Act in that the plaintiff's burden of proof is

somewhat lessened, and that it was only because of this

unique treatment of the negligence issue that Lavender

applied the “scintilla/any evidence” test. Indeed, that

test is appropriate in situations where a statute dic-

tates that the burden of proof as to an issue is to be less-

ened, but as to other issues to which no special treat-

ment is accorded, the reason for applying the “scin-

tillaJany evidence” rule, and hence Lavender, is conspic-

uously absent. Unfortunately, this the Fifth Circuit ap-

parently completely misunderstood.

Additionally, the Fifth Circuit “incorporated” Laven-

der’s FELA rule as to status when, in fact, status is an

issue only in Jones Act cases and not in FELA cases. In-

deed, this Court has held that the term “employee”

under FELA has no special meaning.?! Because the

FELA has no requirement of permanent assignment as

found in the Jones Act,?? it was clearly improper to app-

ly by “incorporation” the liability rule of an FELA case

to the jurisdictional status issue in this Jones Act case.

For these reasons, it was error for the Fifth Circuit to

apply the Lavender v. Kurn “scintillalany evidence” test in

determining the propriety of granting a judgment not-

withstanding the verdict as to the jurisdictional issue of

seaman’s status.

21. Baker v. Texas & Pacific R. Co., 359 U.S. 227 (1959).

22 See e.g. Offshore Company v. Robison, 266 F.2d 769 (Sth Cir.

1959).

15

Il. The Fifth Circuit’s Application of Laven-

der v. Kurn To The Issue Of Seaman’s

Status Prevents A District Judge From

Exercising Control Over Determina-

tion Of Its Jurisdiction.

Before fully developing this argument, it should be

noted that the basic thrust of it is again very simple —

there is no Jones Act case to which Lavender, supra, can

apply, and therefore no jurisdiction in the District

Court, until plaintiff has proved at least as a threshold

matter that reasonable minds could find that he was a

seaman and member of the crew of a vessel or fleet of

vessels within the meaning of the Jones Act.

Article III, Section 2 of the Constitution provides

that “[t]he Judicial Power shall extend. . . toall cases of

admiralty and maritime jurisdiction. . .” Jones Act suits

involve a federal question and may be brought on

either the admiralty or law side of the court.23 The

Jones Act applies only between seamen and their

employers and provides the only remedy available to

such workers for employer negligence.24 Thus, the

Jones Act plaintiff's claim to federal jurisdiction stands

or falls with his assertion that he is aseaman and mem-

ber of the crew of a vessel or fleet of vessels. If the re-

23 Panama Railroad Co. v. Johnson. 264 U.S. 375 (1924); 2A, Moore,

Federal Practice, Section 8.09[2] page 8-60 (2d Ed. 1968).

24 46 U.S.C. §688.

16

quired status is found lacking, neither diversity of citi-

zenship nor the two other grounds of maritime juris-

diction25 could support the presence of federal juris-

diction, because, as stated above, the Jones Act pro-

vides the seaman’s exclusive remedy for employer

negligence.2¢

The decision below prevents District Courts in the

Fifth Circuit from performing their Constitutional

duty of determining the presence or absence of juris-

diction over the subject matter?” before them in that

parties such as Bazile are allowed to make out a Jones

Act case and therefore a “federal case” solely by self-

serving testimony that their duties were those of crew-

members. The Fifth Circuit’s decision completely inter-

dicts the District Court from deciding this jurisdic-

tional issue to the contrary, even in the face of over-

whelming testimonial and documentary evidence con-

tradicting and impeaching plaintiff's self-serving testi-

mony.

The Fifth Circuit’s allowing the jury to and prevent-

ing the District Court from defining the parameters of

25 The Admiralty Extension Act, 46 U.S.C. §740; Executive Jet

Aviation, Inc. v. City of Cleveland, 409 U.S. 240 (1972).

26 Non-seamen would be covered by either the state Work-

men’s Compensation statute or the Longshoremen’s and Harbor

ot Compensation Act, 33 U.S.C. §902 et seq. See section V

ow.

27. The boundaries of federal jurisdiction are set forth in Article

III, Section II of the Constitution of the U.S.

17

federal jurisdiction offends the jurisdictional arrange-

ment set forth in the Constitution and interpreted by

the Courts. Surely every plaintiff who brings a Jones

Act suit is willing to testify that he did crew’s work or

else he would not have filed such a suit. With the Dis-

trict Court no longer having any discretion, and re-

membering that the same standard applies to directed

verdicts as to judgments notwithstanding the ver-

dict,28 all cases in which Jones Act status is alleged must

irretrievably be submitted to a jury for jurisdictional

determination, even though the District Court may be

prepared to hold as a matter of law that plaintiff was

not a seaman at the pertinent time.

The constitutional infirmities and lack of judicial

economy created by the decision below demonstrate

that the District Court's limited power over the juris-

dictional issue of seaman’s status must be restored. For

example, and with no disrespect meant, under the de-

cision as rendered by the Fifth Circuit, a circus clown

who works in the center ring under the big top in

Omaha, Nebraska could bring a Jones Act suit and pre-

vent the District Court’s taking of the jurisdictional

question of status from the jury merely by testifying

that his duties were those of a deckhand or other

member of the crew of a vessel in navigation. Under the

Fifth Circuit’s decision, the District Court can enter

28 O'Neill v. W. R. Grace & Company, 410 F.2d 908 (Sth Cir. 1969),

reh. den. (1969); Moore, Federal Practice, Section 50.07 [2], page 50-

76 (2d ed. 1979).

18

neither a directed verdict nor a judgment notwith-

standing the verdict, even if the testimony of all the

other witnesses, as well as all the documentary evidence,

were to the contrary. The only corrective measure

available to the District Court would be to grant a new

trial and thereby force the parties to relitigate the

matter.

Moreover, many courts have recognized the

devastating jurisdictional consequences that follow

when a District Court is prevented from deciding the

jurisdictional status issue even though reasonable

minds could not find plaintiff to have been a seaman.

Indeed, only four years ago, the Fifth Circuit, in Hol-

land v. Allied Structural Steel Co., Inc.,29 declared with this

Court’s approval that:

. there remains the jurisdictional require-

ment that a claimant alleging seaman status

under the Jones Act have been connected, in

more than a transitory way, with a vessel or

vessels, and that his injuries have arisen in the

course of his duties in the service of such a

vessel or vessels. See, e.g., Keener v. Transworld

Drilling Co., 5 Cir. 1972, 468 F.2d 729, 732;

Burns v. Anchor-Wate Co., 5 Cir. 1973, 569 F.2d

732; Owens v. Diamond M. Drilling, 5 Cir. 1973,

487 F.2d 74, 76. (Emphasis supplied) 539 F.2d

at 479.

29 539 F.2d 476, 479 (Sth Cir. 1976) reh. and reh. en banc denied

(1976), cert. den. 4229 U.S. 1105 (1977).

19

The Holland court also recognized that jurisdictional

determination of Jones Act status is by necessity a mix-

ed question of fact and law, and further declared that:

Though ordinarily a question to be resolved

by the trier of fact, “the district court may

properly refuse to submit [the] issue to the

jury where the only rational inference to be

drawn from the evidence is “that the claimant

was not a seaman. Owens v. Diamond M. Drilling

Co., 487 F.2d at 76.”

By the use of the word “rational”, the Fifth Circuit ex-

hibited, at least as recently as four years ago, its under-

standing that the standard of Lavender v. Kurn, supra,

properly could not and should not be applied to the

jurisdictional status issue.

Additionally and most importantly, the danger that

arises from interdicting the District Court in these

matters has not gone unnoticed by this Court. In Senko

v. Lacrosse Dredging Corp., supra, Justice Harlan stated in

his dissent3° which was joined by Justices Frankfurter

and Burton that:

The fact that it was a jury that found Senkoto

be “a member of a crew” does not relieve us of

the responsibility for seeing to it that what is

30 352U.S., at 378. That this statement was expressed in dis-

sent is of no significance in that, as shown above, the majority

opinion also supports petitioner's position.

20

in effect a jurisdictional requirement of the Jones Act

is obeyed. (Emphasis supplied).

The need for judicial protection of the Jones Act’s juris-

dictional requirement has not lessenéd since the time

Justice Harlan’s reasoning was published.

In light of the staggering consequences that the Fifth

Circuit’s decision has effected upon the Constitutional

parameters of federal jurisdiction, Bisso submits that

this Court should now return to the Distrigt Court its

limited discretion as to determining the presence or

absence of Jones Act jurisdiction as a matter of law in

cases in which no reasonable mind could hold other-

wise.

IV. The Fifth Circuit’s Decision Is In Con-

flict With The Treatment Accorded The

Status Issue In All Other Circuits.

That Bisso’s position has merit and the decision be-

low is in error is further illustrated by showing that of

all reported applications of Lavender, not one court, state

or federal, trial or appellate, has ever applied the Laven-

der “any evidence” standard to the jurisdictional ques-

tion of seaman’s status, or any other jurisdictional

question. Lavender’s application in Jones Act cases has

quite properly, until the decision below in this matter,

been restricted to liability issues arising from the more

onerous negligence and causation standards set forth

in and required by the Jones Act.

21

Surely the fact that only the Fifth Circuit, of all the

courts in the land, has chosen to apply Lavender in deter-

mining the propriety of granting a motion for a judg-

ment notwithstanding the verdict as to the jurisdic-

tional issue of seaman’s status suggests that this Court

should further examine the decision below. This is

especially true when it is considered that this drastic

deviation from the rule of law applied nationwide was

accomplished in a single sentence and without any dis-

cussion or consideration of either the prior juris-

prudence or the staggering consequences which

follow.

V.. Bazile’s Claim Is That Of An Injured

Longshoreman And Therefore Com-

pensable Under The Longshoremen’s

And Harbor Workers’ Compensation

Act.

Before concluding, Bisso wishes to advise this Court

that it is not suggesting that Bazile’s injuries, if any, are

not compensable under law. Indeed, it is, has been, and

will continue to be Bisso’s position that Bazile’s claim

lies not under the Jones Act but rather within the ambit

of the Longshoremen’s and Harbor Workers’ Com-

pensation Act (hereinafter “LHWCA”), as amended in

1972,31 which defines “employee” as:

§903(3) ... any person engaged in mari-

time employment, including any longshore-

31 33 U.S.C. §§901 et sey.

22

man or other person engaged in longshoring

operations, and any harborworker including a

ship repairman, shipbuilder, and shipbreaker,

but such term does not include a master or

member of a crew of any vessel, or any per-

son engaged by the master to load or unload or

repair any small vessel under eighteen tons

net.

The LHWCA then delineates its coverage as follows:

§903(a) Compensation shall be payable

under this chapter in respect of disability or

death of an employee, but only if the dis-

ability or death results from an injury occur-

ring upon the navigable waters of the United

States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine rail-

way, or other adjoining area customarily used

by an employer in loading, unloading, repair-

ing, or building a vessel) . . .

Bisso submits that Bazile satisfies the “employee” or

status requirement of the LHWCA in that carrying

groceries on to and off of vessels is precisely the type of

work historically performed by longshoremen, and, it

should be noted, very unlike the work of seamen. Also,

Bazile’s alleged injury occurred while he was ona wharf

adjoining navigable water and clearly falls within the

above quoted situs requirement of the LHWCA.

23

It is for these reasons that Bazile’s alleged injury is

covered by the LHWCA, which by its terms excludes

from coverage seamen and crewmembers.

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Unit-

ed States Court of Appeals for the Fifth Circuit in this

matter.

Respectfully submitted,

WINSTON EDWARD RICE,

Trial Attorney

1300 Hibernia Bank Building

New Orleans, Louisiana 70112

Telephone: 566-1311

and

PHELPS, DUNBAR, MARKS,

CLAVERIE & SIMS

Attorneys for

Bisso Towboat Company

24

CERTIFICATE OF SERVICE

It is hereby certified that three copies of the forego-

ing petition were served on Darryl J. Tschirn, Esq.,

of Covington, Louisiana this date by mailing same as

required by Rule 33-1 of this Court.

New Orleans, May , 1980.

WINSTON EDWARD RICE

la

APPENDIX A

Leo BAZILE,

Plaintiff-Appellant,

versus

BISSO MARINE CO., INC.,

Defendant,

Bisso Towboat Co.,

Defendant-Appellee.

No. 77-1015

United States Court of Appeals,

Fifth Circuit

Nov. 8, 1979

* * *

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before WISDOM, GOLDBERG and FAY, Circuit

Judges.

FAY, Circuit Judge:

This case was brought in the United States District

Court for the Eastern District of Louisiana by Leo

2a

Bazile against Bisso Towboat Company alleging that he

was a member of the crew of the various vessels own-

ed by Bisso and that he was injured due to the negli-

gence of Bisso and was therefore entitled to $900,000

in damages. The jury found that plaintiff was a sea-

man and that he was entitled to $250,000 in damages

from Bisso Towboat Company. The trial judge grant-

ed a judgment notwithstanding the verdict and, in the

alternative, granted a motion for a new trial. Although

we recognize this is an unusual case we believe the dif-

ferent standards of review for a judgment notwith-

standing a verdict and granting a new trial require us to

reverse the judgment notwithstanding the verdict and

affirm the granting of a new trial.

I. FACTS

The defendant, Bisso Towboat Co., operates six

vessels and hired plaintiff, Leo Bazile in 1970. Plaintiff's

testimony was that throughout his employment and

until his injury he performed various tasks for Bisso

Towboat as a deck hand. He further testified that he

spent from 80-90 percent of his working time on board

the Bisso fleet, that he ran errands for Bisso and that he

performed whatever tasks Captain Slatten asked him

to perform. He testified that he went on board the Sally

R (one of the vessels): “I just went down — go up the

river vith it or go down the river with it; one thing or

another. Not to spend no significant amount of time.”

T. at 103. He stated that he thought he had been a deck

3a

hand on the Independent, another of Bisso’s tug boats,

which Bazile says may have sunk in 1972 or 1973. He

said he was a deck hand on the tug boat, Cecilia: “I was a

deck hand at the time. I was a deck hand for the Bisso

Boat Company for me to go out and bring stores or do

anything they said. If they didn’t show up I would have

to do whatever Captain Slatten say to do and I have to

do it.” T. at 105. He stated that he helped run the Cappy

and was a standby on that vessel. He alsostated that he

worked on the Bisso to “build up steam” and in answer

to a question “Did you go on it [the Bisso] when it left

the dock?” he said “It moved out in the river and up

from one end of the dock to another; shifting from one

place to the other.” T. at 107. He further testified that

he “moved away from the dock” with the Billy Bisso.

Bazile’s testimony was that he was not assigned to one

particular boat but that he did go away from the dock

numerous times at night on various vessels belonging

to his employer. He stated that he performed various

duties: “For example, like I say, I take inventories, |

went on to take lines onto them to bring guys on them,

and help guys with lines, and on occasions we would

take guys off of the boat.” T. at 157. He explained that

during the course of his duties he sometimes had to

“get on one boat to get over to the next one” and that

the boats were not all at the dock. T. at 157. He said he

rode on the boats up or down the river and that he was

there “to help them with whatever they had to do.” T.

at 158-159. He testified that he helped paint the Billy

Bisso and that he sometimes carried cables onto the

vessels. Although it appears he was provided with acar

4a

and he often took the car home after work, he stated

that other deck hands employed by Bisso Towboat also

used the company car to get sandwiches.

The payroll journal of the Bisso Towboat Com-

pany covering the period from the beginning of plain-

tiff’s employment with Bisso until his accident, which

listed the crew members of each vessel, indicated that

plaintiff was employed and paid as an office worker.

Aside from Captain Slatten, the defendant called nine

witnesses on the status issue, including the dispatcher

for Bisso, the Bisso record keeper, and several other

employees of Bisso who had worked closely with the

plaintiff. All testified that he was essentially an errand

runner, that he had never worked as a deck hand and

that he was only on board the vessels occasionally and

only incidental to his work as a runner. Plaintiff's com-

pensation was $600 a month.

Plaintiff testified that on the day of his alleged acci-

dent he had been taking inventory of groceries aboard

some of the tug boats. While carrying a box of canned

goods away from a vessel on the dock, the plaintiff

testified that the Sally R pulled up to the dock and

knocked against it, causing the dock to move up and

down and that, as a result, plaintiff lost his balance and

fell. An invoice introduced by defendant showed that

on the day of the accident the Sally R was not in New

Orleans, where the injury to plaintiff occurred, but was

in Boothville.

5a

The jury returned a verdict for the plaintiff, finding

that he was a seaman under the Jones Act, that the

defendant’s negligence was the sole cause of the in-

jury, and that the plaintiff was entitled to recover

$250,000 in damages from defendant. After the jury

was dismissed the defendant moved for a judgment

notwithstanding the verdict and alternatively for a

new trial. The motion for judgment notwithstanding

the verdict was granted based on the lack of plaintiff's

credibility as a matter of law and also on the finding

that, taking plaintiff's testimony as correct, except

where inconsistent, plaintiff did not present sufficient

evidence to support the determination of seaman’s

status made by the jury. The motion for new trial was

taken under submission and was later granted condi-

tioned on the reversal of the judgment notwithstand-

ing the verdict.

II]. SCOPE OF REVIEW

It is clear that where a party seeks a judgment not-

withstanding the verdict or, in the alternative, a new

trial, if the trial court grants the judgment notwith-

standing the verdict and grants the new trial in the

alternative, the judgment notwithstanding the verdict

is final and the court of appeals can review both rulings.

See, Fed.R.Civ.P. 50(c)(1).

This departure from the normal rule that a

motion granting a new trial is interlocutory

6a

and non-appealable is justified by the obvious

fact that the principal judgment is clearly final;

the new trial grant will never be effective un-

less the judgment is overthrown. Since the

principal judgment is appealable, it would be

wasteful to hold that the Court of Appeals

cannot review all that happened below in the

event that it holds the grant of judgment not-

withstanding the verdict to have been erro-

neous.

9 Moore’s Federal Practice §110.08[3], at 122 (2d. ed.

1948). Thus, we have jurisdiction to consider both the

judgment notwithstanding the verdict and the new

trial.

A. Judgment Notwithstanding the Verdict

The standard for granting a motion for a judgment

notwithstanding the verdict requires that the trial

court review all the evidence in the light most favor-

able to the opponent of the motion and if the trial court

still finds that the facts and inferences point so strong-

ly and overwhelmingly in favor of one party that

reasonable men could not arrive at a contrary verdict,

the motion for a judgment notwithstanding the verdict

should be granted. Boeing Co. v. Shipman, 411 F.2d 365

(Sth Cir. 1969). It is also true that under Lavender v. Kurn,

327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1945) the trial

judge in a Jones Act case is bound by a stricter rule —

7a

only when there is a complete absence of probative

facts supporting the verdict can he grant amotion for a

judgment notwithstanding the verdict. 327 U.S. at 653,

66 S.Ct. 740.

We find that even applying the less strict standard of

Shipman the granting of the motion for ajudgment not-

withstanding the verdict was improper. There was

sufficient testimony from the plaintiff tosupport a ver-

dict that he was a seaman. He testified that he was

assigned to all the tug boats and that he often brought

supplies to all of them, helped with the lines, helped

paint a tug boat and would perform whatever tasks

Captain Slatten requested him to perform on any of the

vessels. Furthermore, his testimony revealed that at

times when a tug boat was away from the dock area

Bazile would be on board performing whatever tasks

were necessary and requested of him. We do not be-

lieve that Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir.

1959) restricts a seaman to a person assigned only to

one vessel.! Rather, a person can be a seaman assigned

toa fleet of vessels and the question is sufficient to go

to the jury as long as he was assigned permanently to

these vessels or performed a substantial part of his

work on these vessels and if the capacity in which he

was employed or the duties which he performed con-

tributed to the function of these vessels, or to the ac-

1. The jury instructions given by the trial judge on what is

necessary in order to find that someone is a seaman were clearly

adequate.

3

8a

complishment of its mission, or to the operation or wel-

fare of these vessels in terms of maintenance during its

movement or during anchorage for its future trips. 266

F.2d at 779. Bazile’s duties on the vessels contributed to

the operation and maintenance — he painted, helped

bring supplies to them, helped with the lines, helped

dock the tugs, and performed whatever duties were

necessary for its maintenance and operation as he was

told. Plaintiff’s testimony was that he worked on the

vessels 80-90 percent of the time. He further testified

that on the day of the accident he had been taking in-

ventory of groceries aboard some of the vessels. While

carrying a box of canned goods away from a vessel on

the dock, plaintiff testified that the Sally R pulled upto

the dock and knocked against it, causing the dock to

move up and down and as a result plaintiff lost his bal-

ance and fell. Although his testimony was contradict-

ed by an exhibit produced by defendant which indi-

cated that the Sally R may not have been in New Or-

leans on the day of the accident, the jury could certain-

ly have believed plaintiff instead of relying on the in-

voice produced by defendant which was prepared seven

days after the office got a report from the tug boat re-

lating where it had been. The jury could have believed

plaintiff instead of defendant’s witnesses and the

number of defense witnesses is certainly irrelevant as

to what could or could not be believed. There was suffi-

cient testimony from which the jury could have found

that plaintiff was a seaman, that defendant’s negli-

gence was the sole cause of the injury and that the

plaintiff was entitled to recover $250,000.

=<

9a

B. New Trial.

As far as the motion for a new trial, the trial judge

can grant a new trial if he believes the verdict is con-

trary to the weight of the evidence. See, e.g., Mont-

gomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189,

85 L.Ed. 147 (1940); Marsh v. Illinois Central Rail Co., 175

F.2d 498 (Sth Cir. 1949). Although a trial judge cannot

weigh the evidence when confronted with a motion

notwithstanding the verdict, in a motion for a new trial

the judge is free to weigh the evidence. As an appellate

court, our review of the granting of the motion for a

new trial is severely limited — the lower court’s action

is discretionary and we may interfere only when the

court abuses its discretion or fails to exercise it. Hamp-

ton v. Magnolia Towing Co., 338 F.2d 303, 306-307 (Sth

Cir. 1964). After careful consideration of the record we

are not prepared to hold that the trial judge abused his

discretion in granting the motion for a new trial. The

only witness who supported plaintiff’s story was the

plaintiff.2 Because in a motion for a new trial he may

weigh the evidence, the trial judge could have placed

great weight on the witnesses presented by defendant

who testified that Bazile was not a member of the crew

and did not perform duties of a seaman and little or no

weight upon Bazile’s testimony. The trial judge could

have determined that the manifest weight of the evi-

2 At trial Captain Slatten testified that in 1970 he executed a

United States Public Health Master’s Certificate which classified

Leo Bazile as a deck hand/wiper on a vessel in the Bisso fleet but

that he falsified the certificate in order to help Bazile obtain hos-

pital care. Captain Slatten said that at the time he executed the

certificate Bazile was not a seaman.

10a

dence indicated that Bazile’s job was that of an office

worker and not a seaman.

II. CONCLUSION

Because we are presented with different standards of

review, we find that it was error on the part of the trial

judge to grant the motion notwithstanding the verdict

but find that it was within his discretion to grant the

motion for a new trial. Accordingly, we REVERSE the

judgment notwithstanding the verdict and AFFIRM

the granting of the new trial.

APPENDIX B

MINUTE ENTRY

SEAR, J.

DECEMBER 17, 1976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LEO BAZILE

versus CA No. 75-1955(G)

BISSO MARINE CO., INC., ET AL.

The captioned matter was tried on December 13-14,

1976. At the close of the plaintiff’s case the defendant

lla

moved for a directed verdict which was denied. The

motion was re-urged at the close of all the evidence and

again denied. The jury returned a verdict for the plain-

tiff, finding that he was a seaman under the Jones Act,

that the defendant’s negligence was the sole cause of

his injury, and that the plaintiff was entitled to recover

$250,000 in damages from the defendant. After the

jury was dismissed the defendant moved for a judg-

ment notwithstanding the verdict, and alternatively

for a new trial. The motion for judgment notwith-

standing the verdict was granted for the reasons

assigned in court and re-asserted here. The motion for

a new trial was taken under submission.

Although the standard for granting a judgment not-

withstanding the verdict is identical to that for grant-

ing a directed verdict, the denial of a directed verdict

does not preclude consideration of a later motion for |

judgment notwithstanding the verdict. Indeed, unless a

motion for a directed verdict at the close of the evi-

dence has been made and denied, the court may not

entertain a motion for judgment notwithstanding the

verdict. Rawls v. Daughters of Charity of St. Vincent

De Paul, Inc., 5 Cir. 1974, 491 F.2d 141, cert. denied, 95

S.Ct. 513. According to the terms of Rule 50(b), Fed. R.

Civ. P., when the court denies the motion for a direct-

ed verdict, the court’s ruling does not function as a final

denial, but instead “the court is deemed to have sub-

mitted the action to the jury subject toa later determi-

nation of the legal questions raised by the motion.”

'*%

12a

The standard for deciding a motion for directed ver-

dict or motion for judgment notwithstanding the ver-

dict has been stated in this Circuit as follows:

“It is well established that a judgment not-

withstanding the verdict should not be grant-

ed unless under the evidence, together with all

inferences that can be reasonably drawn

therefrom, there can be but one reasonable

conclusion as to the proper judgment. O'Neil

v. W. R. Grace & Co., 5 Cir., 1969, 410 F.2d

908; Leach v. Millers Life Ins. Co. of Tex., 5

Cir., 1968, 400 F.2d 179.”

Continental Insurance Co. of New York v. Sherman, 5

Cir. 1971, 439 F.2d 1294, 1300. The court must view

the evidence in the light most favorable to the party

against whom the motion is made. It may not weigh the

evidence, pass on the credibility of witnesses, or simply

substitute its appreciation of the facts for that of the

jury. Wright & Miller, 9 Federal Practice and Pro-

cedure §2524. Nonetheless, evidence manifestly at

variance with physical facts must be disregarded.

Southern Pacific Co. v. Matthews, 5 Cir. 1964, 335 F.2d

924, 927. Furthermore, a narrow exception to the rule

that the court may not consider credibility is the prin-

ciple that “testimony concerning a simple fact capable

of contradiction, not incredible, and standing uncon-

tradicted, unimpeached, or in no way discredited by

cross examination, must be taken as true.” Chicago,

R.I. & P. Rwy. Co. v. Howell, 10 Cir. 1968, 401 F.2d 752,

754. Moreover, the Fifth Circuit has recently recog-

nized, in the context of the seaman’s status issue, that

testimony may be socontradicted by documentary evi-

dence that reasonable men could not believe it. In these

circumstances, testimony may be incredible as a matter

of law. Holland v. Allied Structural Steel Co., Inc., 5

Cir. 1976, 539 F.2d 476, 483.

The threshold question in the instant case was

whether or not the plaintiff was a seaman. If plaintiff

was not a seaman, he was not entitled to recover under

the Jones Act.

On the status issue, two witnesses were called by the

plaintiff: the plaintiff himself and Captain William An-

thony Slatten, plaintiff's supervisor at Bisso Towboat

Co., under cross-examination. Captain Slatten testi-

fied that the plaintiff was employed by Bisso Towboat

Co. essentially as an errand runner, and that he had

never been assigned to duty on any of Bisso’s tugs.

Captain Slatten was then confronted with a Master’s

Certificate of Service signed by him indicating that the

plaintiff was employed by Bisso Towboat Co., Inc. as a

“wiper — deckhand”. Plaintiff’s Exhibit 1. Captain

Slatten’s explanation was that he had falsified the Mas-

ter’s Certificate as a personal favor to the plaintiff, in

order that the plaintiff could obtain free treatment as a

seaman at the United States Public Health Hospital.

Captain Slatten testified that plaintiff was seriously ill

with diabetes at the time he made out the certificate,

and he felt that the circumstances somewhat justified

his admitted falsification.

14a

The plaintiff testified that he was employed as a

deckhand by Bisso Towboat Co., and that he spent

from eighty to ninety percent of his time on the tugs.

When pressed for details of his specific duties aboard

the tugs plaintiff was vague and unresponsive. When

asked for approximate dates of time spent on tugs,

plaintiff gave two or three examples, but his own

specific testimony on this point did not equate with his

blanket conclusion that he spent eighty to ninety per-

cent of his time on the tugs. Plaintiff's testimony in this

regard was contradicted by the payroll journal of the

Bisso Towboat Co. covering the period from the be-

ginning of plaintiff's employment with Bisso until his

accident, which listed the crew members of each vessel,

and indicated that plaintiff was employed and paid as an

office worker. Defendant’s Exhibit 6. Further docu-

mentary evidence of plaintiff’s status was plaintiff's en-

rollment record card for group insurance with his

employer, which listed plaintiff's position as “assistant

office manager.” Defendant’s Exhibit 1. Plaintiff him-

self admitted that he was furnished with acompany car

in which to do various errands, and it was uncon-

tradicted that no other seagoing employee of Bisso

Towboat Co. was provided with a car.

Plaintiff testified that on the day of his alleged acci-

dent he had been taking an inventory of groceries

aboard some of the tugs. While carrying a box of

canned goods away froma tug on the dock, according to

the plaintiff, the Tug SALLY R pulled up to the dock

15a

and knocked against it, causing the dock to move up and

down with the result that plaintiff lost his baiance and

fell. Plaintiff’s testimony in this regard was contradict-

ed by an invoice on the SALLY R which showed that on

the day of the accident the SALLY R was not even in

New Orleans, the site of the accident, but instead was

in Boothville. Defendant’s Exhibit 5. Plaintiff himself

was the only witness to the alleged accident.

Aside from Captain Slatten, the defendant called

nine witnesses on the status issue, including the dis-

patcher for Bisso, the Bisso record keeper, and several

other employees of Bisso who had worked closely with

the plaintiff. All testified that the plaintiff was emplov-

ed essentially as an errand runner, that he had never

worked as a deckhand for Bisso, and that in fact, he had

never been seen aboard any of the tugs, except as it

might occasionally be incidental to his work as an

errand runner. |

Accepting plaintiff's testimony as accurate, except

for his conclusion that he spent eighty to ninety per-

cent of his time on board the tugs, a statement contra-

dicted by his own testimony, there was not sufficient

evidence as a matter of law to support the jury’s find-

ing that plaintiff was a seaman. Moreover, in light of

the contradictions inherent in plaintiff’s testimony and

between that testimony and the documentary evi-

dence, and considering the unimpeached testimony of

nine defense witnesses (that is excluding Captain

16a

Slatten), we believe that plaintiff’s testimony was in-

credible as a matter of law. This becomes more appar-

ent when the instant case is compared with Holland v.

Allied Structural Steel Co., Inc., 5 Cir. 1976, 539 F.2d

476, in which the Fifth Circuit found testimony not

only of the plaintiff, but of seven plaintiff’s witnesses,

to be incredible as a matter of law, because it was self-

contradictory and contrary to the physical evidence. In

this case, the plaintiff has not produced one single wit-

ness to corroborate his story. However, we emphasize

that the decision to grant defendant’s motion for a

judgment notwithstanding the verdict, was based not

only on the lack of plaintiff's credibility as a matter of

law, but also, on our finding that taking plaintiff's testi-

mony as correct, except where inconsistent, plaintiff

did not present sufficient evidence to support the

determination of seaman’s status made by the jury.

We must next consider the motion for a new trial.

When the motion for a judgment notwithstanding the

verdict is presented alternatively with a motion for a

new trial, it is essential that the court rule on both

branches of the motion. Rule 50(c)(1), Fed. R. Civ. P.; 9

Wright & Miller, Federal Practice and Procedure §2539.

This places the district court in the awkward position of

assuming that its grant of judgment will be reversed.

Momand v. Universal Film Exchange, Inc., D. Mass.

1947, 72 F.Supp. 469, 483, aff'd 1 Cir. 1948, 172 F.2d 37,

cert. denied 69 S.Ct. 939. Conditioned on the reversal

of the judgment notwithstanding the verdict, we be-

lieve that a new trial should be granted.

17a

Rule 59(a), Fed. R. Civ. P. provides in part:

“A new trial may be granted to all or any of

the parties and on all or part of the issues (1) in

an action in which there has been a trial by

jury, for any of the reasons for which new

trials have heretofore been granted in actions

at law in the courts of the United States;”

The trial judge has broad discretion to grant anew trial

if he deems it is in the interest of justice to doso. Unit-

ed States for Use of Weyerhaeuser Co. v. Bucon Con-

str. Co., 5 Cir. 1970, 430 F.2d 420; Delta Engineering

Corp. v. Scott, 5 Cir. 1963, 322 F.2d 11, rehearing de-

nied 1964, 325 F.2d 432, cert. denied, 84 S.Ct. 1164.A

common ground for granting a new trial, and the one

we believe appropriate here, is that the verdict is con-

trary to the weight of the evidence. Unlike the motion

for a directed verdict or for judgment notwithstanding

the verdict, on a motion for a new trial, the court is free

to weigh the evidence. United States ex rel. T.V.A. v.

544 Acres of Land, etc., E.D. Tenn. 1969, 309 F.Supp.

46. The standard against which to measure the weight

of the evidence on a motion such as this one, has been

widely debated. It has been said that a new trial may be

granted and the verdict of the jury set aside even

though there is substantial evidence tosupport it. Unit-

ed States for Use of Weyerhaeuser Co. v. Bucon Con-

str. Co., 5 Cir. 1970, 430 F.2d 420, 423; Hamption v.

Magnolia Towing Co., 5 Cir. 1964, 338 F.2d 303. How-

ever, we believe that the instant case requires no deli-

18a

cate balancing or drawing of fine lines. In this case, the

overwhelming weight of the evidence as summarized

above is contrary to the jury’s verdict that the plaintiff

was a seaman.

Accordingly, defendant’s motion for a new trial is

GRANTED, conditioned on the reversal of the judg-

ment entered by the court notwithstanding the verdict

of the jury.

New Orleans, Louisiana, December 17, 1976.

Is) MOREY L. SEAR

MOREY L. SEAR

UNITED STATES

DISTRICT JUDGE

19a

APPENDIX C

[32] TESTIMONY OF

CAPTAIN WILLIAM A. SLATTEN

* * *

A The Cecilia Bisso and, the Captain Bisso. The

boats in operation were the Independent, the Leo, the

Alma S, the Cecelia Bisso, the Captain Bisso and the

Sally R. Six boats in operation.

* * *

[32] A We have a billing office at 632 S. Carrollton

[33] Avenue. The fleet office is on Walnut Road.

[99] TESTIMONY OF LEO BAZILE

Q Well, did the Bisso Towboat Company have an

office in the downtown area at that time?

A Yes, they had one at the International Trade

Mart.

20a

[273] TESTIMONY OF

CAPTAIN WILLIAM A. SLATTEN

* * *

A Well, Leo did a lot of running for me. We had

offices in the ITM Building, spent time down there

picking up stuff and bringing it up to the office. We had

a shop on Carrollton Avenue.

* * *

[34] Q You don’t remember. The best you can re-

member was Leo made, at that time, approximately

$600.00 a month straight salary and he was like an

errand boy to run errands?

A He had an automobile and a gas account and was

supposed to make himself available to run to the bank

and different errands for me.

* * *

Q Captain Slatten, you hired Mr. Bazile in 1970 as

an errand boy?

* * *

[100] TESTIMONY OF LEO BAZILE

A_ I went tothe bank. I went to pick up the supplies.

* * *

21a

[34] TESTIMONY OF

CAPTAIN WILLIAM A. SLATTEN

A_ He. ..was supposed to make himself available to

run to the bank...

[57] A He would go to the bank, pick up parts,. . .

* * *

[100] TESTIMONY OF LEO BAZILE

A_ I went tothe bank. Iwent to pick up the supplies.

Q Did you go to the bank regularly?

A_ It all depended on what he wanted me to do.

Q How many times a week would you go to the

bank?

A Sometimes twice andsometimes I didn’t goat all.

* * *

[57] TESTIMONY OF

CAPTAIN WILLIAM A. SLATTEN

A No, he didn’t buy any groceries. Trying to re-

member, he might have ordered groceries. He ordered

groceries over the phone, picked up the phone and said

“Look, I want eggs, bacon,. . .”, this and that. He called

the orders in. James Butler picked them up...

* * *

22a

[273] A Well, Leo did a lot of running for me. We

had offices in the ITM Building, spent time down there

picking up stuff and bringing it up to the office. We had

a shop on Carrollton Avenue...

* * *

[100] TESTIMONY OF LEO BAZILE

Did Captain Slatten own a supply store?

Yes.

Where is that store?

On Carrollton Avenue.

Did you spend any time running there?

I told you I did.

>O?rOD>”O

* * *

[101] A lanswered phones if I was there because he

told me to stand by there, he wanted to talk to me. That

was the point to get in contact with me.

* * *

[57] TESTIMONY OF

CAPTAIN WILLIAM A. SLATTEN

A He would go to the bank, pick up parts, ...

* * *

23a

[34] Q_ It is possible he could have or couldn’t have.

You don’t remember. The best you can remember was

Leo made, at that time, approximately $600.00 amonth

straight salary and he was like an errand boy to run

errands?

A He had an automobile and a gas account and was

supposed to make himself available to run to the bank

and different errands for me.

* * *

[276] A They work 48 on and 48 off watches on the

boat.

[277] Q_ If he worked 48 hours on and 48 hours off

— say, if he worked 72 hours straight, would he be

compensated?

A Sure. He got paid if he worked over a period.

* * *

[244] TESTIMONY OF DANIEL DAVIS

A Yes, he kept his tie on.

* * *

24a

[274] TESTIMONY OF JAMES BUTLER

A He dressed appropriately. Sometimes he had a

coat and tie on, and sometimes he left his coat and tie in

the car. He didn’t come to work in overalls.

* * *

[314] Q Do you know how Mr. Bazile used to dress

when he came to work?

A Practically dressed like he’s dressed now.

* * *

[319] TESTIMONY OF

MISS JOHNIE THOMAS

THE WITNESS:

He had a coat and tie on.

* * *

[112] TESTIMONY OF LEO BAZILE

Q. That's Falgout, Mr. Lasayer, Mr. Dan Davis, Mr.

Butler, those are the people you can remember you

worked with?

A Yes.

25a

[115] Q And one of those was James Butler?

A He was in the yard.

Q And one of the other people you mention is Dan

Davis?

A_ Ihelped Dan move barges.

Q He’s not regularly assigned to any boats?

A_ All of the guys go from one rig to another they

send them anywhere. They do odd jobs.

* * *

[103] Q Did you spend any time in ’73 on the Inde-

pendent?

A_ In working on it in the yard.

Q What kind of work?

A Taking inventory, helping them on the boat.

Q_ Did you ever go out there on the Independent in

[104] 1973 as a deck hand?

A ‘'73? No, I didn't.

* * *

Q_ Did you work as a deck hand on the Cecilia?

[105] A No, I worked on the boat to bring, take in-

ventories and bring stores aboard and rode on it.

Q You never took any trips on it?

A_ Yes. Not as adeck hand. I rode down to it to bring

supplies and stores.

26a

A The time I went on the Sally R?

Q_ The Sally, yes.

A_ I went to bring stores or take something off, you

know, what I mean, bring some lines or take some off.

Q You never did go andsubstitute as a deck hand?

A No, I did not.

[106] Q When were you on the Leo?

A Well, during the same time I had to 20 on one to

the other.

Q Can you tell me the year?

A Well, I been on the Leo. I went on the Leo in ’73,

February of ’73.

Q February, 1973 you worked on the Leo?

A Went on it to bring stores, like I say.

Q You didn’t goon the Leo towork as a deck hand?

A_ No, I didn’t.

Q_ ...On the Independent did you work as a deck

hand?

A No, I hadn't.

Q_ What other boats?

A On the Cappy.

[107] A_ If you feel like helping another guy you do

it, if you want to.

27a

Q_ The Bisso. Did you ever work as a deck hand on

that boat?

A_ I worked on it to build up steam. That’s what

they used that boat for.

Q When did you do that?

A Right before they junked it in’71,I think it was.

* * *

[109] Q Did you work on the Billy Bisso as a deck

hand? .

A No, I didn’t.

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OFFICE OF THE CLERK

FEBRUARY 14, 1980

Gilbert F. Ganucheau,

Clerk

TO ALL PARTIES LISTED BELOW:

NO. 77-1015 LEO BAZILE -vs- BISSO MARINE

CO., INC., BISSO TOWBOAT, CO.,

(CA-75-1955)

28a

Dear Counsel:

This is to advise that an order has this day been enter-

ed denying the petition( ) for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 16) the

petition( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

Is} PEGGY KELLER

Deputy Clerk

cc: Mr. Robert B. Keaty

Mr. Darryl J. Tschirn

Mr. William W. Healy, III

Mr. William B. Gibbens, III

Mr. Winston Edward Rice