Petition — Litton Systems, Inc. v. Lundy
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Supreme Court, U. S.
80-809 FILED
NOV 19 1980
MICHAEL RODAK, JR., CLERK
No.
a
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
LITTON SYSTEMS, INC.,
Petitioner,
ALVIN L. LUNDY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
KARL WIESENBURG, Esq.
WIESENBURG & REED
Post Office Box 1428
Pascagoula, Mississippi 39567
(601) 762-3255
Of Counsel: Attorney for Petitioner.
Joun H. Carson, Esq.
Post Office Box 149
Pascagoula, Mississippi 39567
Rosert L. ACKERLY, Esq,
816 Connecticut Avenue, N.W.
Washington, D.C. 20006
Washington, 0.C. © THIEL PRESS © (202) 638-4521
(1)
THE QUESTION PRESENTED FOR REVIEW
(1) Do the 1972 amendments of LHWCA permit a
covered shipbuilder employee to maintain a 33 U.S.C.
Section 905(b) third party negligence action against his
shipbuilder employer for injuries recieved on a launched
destroyer in the process of construction in its shipyard,
notwithstanding the exclusive compensation remedy
provisions of 33 U.S.C. Sections 905(a) and 933(i) of the
Act?
(i)
TABLE OF CONTENTS | Kage
THE QUESTION PRESENTED FOR REVIEW ......--; eee @
TABLE OF CONTENTS ....--eeeeeerrererrrreres ii
TABLE OF AUTHORITIES ....- eee eeeerererreres iii
OPINIONS DELIVERED IN THE COURTS
BELOW . ..0 ccd Wee SOS eee Pee CHE HPD Tere ec eece
JURISDICTIONAL STATEMENT ....-+-++++eeeeeees
STATUTES INVOLVED ....--eeeeeeeeerrerererere
STATEMENT OF THE CASE ....-eeee creer rrrerees
REASONS RELIED ON FOR ALLOWANCE
OF THE WRIT ..ccccccccccccccvvecesccecsees
I. The Court of Appeals decision conflicts with
the decisions of this Court ....--e-+++eeeeeeeres
Il. The Court below has decided an important
question of first impression which should
be settled by this Court .....---eeeeeerrreers
Ill. The Court of Appeals has rendered a decision
in conflict with the decisions of other courts
on the same matter ......- eee eeeereeereeees
CONCLUSION 2. cccccccc cscs esse cceresececces
APPENDICES:
Appendix A — Opinion of the 5th Circuit Court of
Appeals, Aug. 20, 1980 ....- +e ee eee rereerrrrees
Appendix B — Judgment of the U.S. District Court
for the Southern District of Mississippi, Dec.
Ll, 1976 sav cw eee ORO PE OROE OH oS eee ccecces
Appendix C — Memorandum to counsel from the
Office of the Clerk, 5th Cir. Court of Appeals,
August 20, 1980)... ee eee ee ee eee rere ee eeeees
Appendix D — Order of the 5th Cir. Court of
Appeals, Oct. 8, 1980, denying Petition for
Rehearing and Petition for Rehearing En
| er rr ee ee
(iit)
Page
Appendix E — Letter to Karl Wiesenburg from the
Office of the Clerk, 5th Cir. Court of Appeals,
Oct. 22, 1980, Granting Stay of Mandate .........+. 8a
Appendix F — Statutes Involved ........005eeeeeeee 10a
TABLE OF AUTHORITIES
Cases:
Alfred v. M/V Margaret Lykes, 398 F.2d 684 (5 Cir.
i Pere fs errr r yr sy eet ro ee ee ee 5, 15
Allied Towing Corp. v. Tatem, 580 F.2d 702 (4
Cie. 2078) ccs vec come tweeeeee esse eset ewe te 17
Arvidson v. Dillingham Corp., 462 F.2d 1 (9 Cir.
1972), cert. denied, 409 U.S, 983 (1972) .......+-. 17, 18
Baker v. Pacific Far East Lines, Inc., 451 F.Supp.
84 (N.D. Ca. 1978) 0... ce rcr verve eevneeevevens 17
Bloomer v, Liberty Mutual Ins. Co., 100 S.Ct.
ot Ae Sele ys ree eee oe ee 6, 8
Bossard v. Port Allen Marine Service, Inc., 624
F.2d 671 (5 Cir. 1980)... wcrc ccvccevevnecvece 9, 18
Buna v, Pacific Far East Line, Inc., 441 F.Supp.
1860 (N.D. Ca. 1977) 2. cc cccaccncvsccccvvevece 17
Calbeck v. Travelers Insurance Co., 370 U.S.
REG CREE babe ova cha edb aan s chee n os 4, 9, 10, 13
Cooper Stevedoring Co. v. Fritz Kopke, Inc.,
417 U.S. 106 (1974) .. cw ccvvcccevscccsccnveces 6, 8
Duncan v. Dravo Corp., 426 F.Supp. 1048
PS gs ere ree eee oe eee ee 17
Edmonds v. Compagnie Generale Transatlantique,
gt US PEER R ERECT er Tree re 6, 7, 10, 19
Frankel v, Bethlehem-Fairfield Shipyard, Inc.,
132 F.2d 634 (4th Cir. 1942), cert. denied,
SID UB, FOS CIGSS) ccc cc ccccscteseverscses 5
(1)
Cases, continued: _Page
Grant Smith-Porter Ship Co. v. Rohde, 257
Se a kc ab dt ek Gs oe eke 4, 5, 9, 13
Griffith v. Wheeling Pittsburgh Steel Corp., 521
F.2d 31, 41-44, (3 Cir. 1975), cert. denied,
OU fin gs, he Re kee 17, 18
Haas v, 653 Leasing Co., 425 F.Supp. 1305
No, Best Sean aD ae ele ee 5, 16
Hess v, Port Allen Marine Service, Inc., 624
Wee ee a s,s on week okies 9, 13
Hollister v, Luke Construction, et al., 517 F.2d
Oe MN eee ee a le ne 6
Ingalls Shipbuilding Corp., Division of Litton
Systems, Inc. v. Morgan, 551 F.2d 61 (5
UE Ware aes Os ae ei et oe 11, 12
Lawson v, United States, 605 F.2d 448 Co a ae 13
Murphy v. Woods Hole, Martha’s Vineyard, et al.,
ee ee ND oe a ss ss occ can 16, 18
Napoli v. Hellenic Lines, 536 F.2d 505, 509 (2
WO UNE e SCAU uhebib nA dee Was ek vee kc: 17
Northeast Marine Terminal Co., Inc. v. Caputo,
se senthie gh oy RE ee aan OO a 11, 13
Olsen v, Todd Shipyards Corp., 435 F.Supp. 568
a RR AC Se ge ee ae a aE 13
Reed v. The Yaka, 373 U.S. 410 a a 15, 16, 17, 18
Smith v. M/V Captain Fred, 546 F.2d 702 (5 Cir.
OE Bie WEA he Wok WA akg OL Cae bie ks kw wie 17
Sun Ship, Inc. v. Pennsylvania, 100 S.Ct. 2432
PE SE Cb aes See Ae hee Wat alee cee che 6
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
No.
LITTON SYSTEMS, INC.,
Petitioner,
ALVIN L. LUNDY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OPINIONS DELIVERED IN THE COURTS BELOW
The opinion of the Court of Appeals for the Fifth
Circuit (Appendix A) appears at 624 F.2d 590. There was
no opinion of the United States District Court for the
Southern District of Mississippi. The order of that Court
granting petitioner summary judgment is attached
(Appendix B).
2
JURISDICTIONAL STATEMENT
The judgment of the Court of Appeals was entered on
August 20, 1980 (Appendix C). A petition for rehearing
was denied on October 8, 1980 (Appendix D). The Court
of Appeals stayed the mandate on October 22, 1980
(Appendix E). Jurisdiction to review the judgment of the
Court of Appeals by Writ of Certiorari is conferred by 28
U.S.C. Section 1254(1).
STATUTES INVOLVED
The statues which the case involves are 33 U.S.C. 902
(1), (2), (3), (4), & (21); 903(a); 905; 933(i). Their
pertinent text is set forth in Appendix F.
STATEMENT OF THE CASE
On July 1, 1976 the petitioner was a shipbuilder prime
contractor constructing new destroyers for the United
States Navy. One of the destroyers, the DD966 had been
launched and was in the process of construction while
moored to a dock within the petitioner’s shipyard, being
prepared for builder’s seatrials. The respondent, Alvin L.
Lundy, a shipbuilder employee of the petitioner, was
injured while working on the incomplete ship. He received
full compensation for his injuries under Section 905(a) of
the LHWCA.
After receiving full compensation from petitioner
under the LHWCA, Mr. Lundy then brought an action
against petitioner, plaintiff’s shipbuilder employer, in the
United States District Court for Southern District of
Mississippi, claiming entitlement to damages: (a) pursuant
to the Jones Act, 46 U.S.C. Section 688 et seq., (b)
pursuant to admiralty and general maritime law and (c)
3
pursuant to the provisions of LHWCA, 33 U.S.C. Section
- 905(b).
Petitioner moved in the District Court pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure for an
order dismissing the complaint and alternatively for
summary judgment pursuant to Rule 5(b).
On December 8, 1978 the District Court granted
petitioner’s motion for summary judgment. On December
11, 1978 the Court entered judgment dismissing the
complaint, with prejudice.
On August 20, 1980 the Court of Appeals reversed the
summary judgment. The opinion noted that the employee
had abandoned his claims brought under general maritime
law and the Jones Act. The Court said:
. .. we need only determine whether he has a claim
under 33 U.S.C. Section 905(b). We find that he
does, and accordingly, we reverse.”
It then held that Section 905(b) of LHWCA was
applicable because the incomplete destroyer under
construction was a vessel under LHWCA and the peti-
tioner shipbuilder was the owner of the vessel. The Court
did not give its reason for such findings nor did it discuss
the exclusive compensation remedies of the employer
under Sections 905(a) and 933(i). Although the issues
presented by this petition were again raised in the Court
of Appeals by petitions for rehearing, the petitions for
rehearing were denied without comment.
4
REASONS RELIED ON FOR ALLOWANCE
OF THE WRIT
I.
THE COURT OF APPEALS DECISION
CONFLICTS WITH THE DECISIONS OF TiilS COURT.
The Congress enacted LHWCA in 1927 to establish a
workmen’s compensation system for maritime employees
whose injuries occured on navigable waters beyond the
reach of state workmen’s compensation statutes. The
LHWCA makes the classic workmen’s compensation
trade-off between the employee’s certainty of recovery
on a no-fault basis and the limitation of his claim against
his employer to the compensation specified in the statute.
The currect 33 U.S.C. Section 905(a) [formerly Section
905] and 933(i) which makes the statutory compensation
the employee’s exclusive remedy against his employer has
been part of the law since its enactment.
When Congress enacted the LHWCA in 1927, it was
aware of this Court’s prior holding in Grant Smith-Porter
Ship Co. v. Rohde, 257 US. 469, (1929) that:
(a) general admiralty jurisidiction extends to a pro-
ceeding to recover damages for a tort committed on a
vessel in the process of construction when lying on navi-
gable waters within the state, and,
(b) the applicable state compensation act (in the
absence of a federal compensation act) is the exclusive
remedy of the employee as against his employer.
In Calbeck v. Travelers Insurance Co., 370 U.S. 116,
(1962) this Court said: )
“Before the Longshoremen’s Act was passed, this
urt had sustained the validity of a state work-
’s compensation statute as applied to injuries
5
suffered by an employee engaged in the completion
of a launched vessel under construction on navigable
waters, Grant Smith-Porter Ship Co. v. Rohde, 257
U.S. 469, 42 S.Ct. 157, 66 L. Ed. 321”, * * *
‘There emerges from the complete legislative his-
tory a congressional desire for a statute which would
provide federal compensation for all injuries to
employees on navigable waters; in every case, that is,
where Jensen might have seemed to preclude state
compensation. The statute’s framers adopted this
scheme in the Act because they meant to assure the
existence of a compensation remedy for every such
injury, * * *.” (370 US. 116, 120-121, 82 S. Ct.
1197-1198, 1200)
Prior to the adoption of the 1972 amendments to
LHWCA, all of the Circuit Courts of Appeal and District
Courts followed the holding of this Court that the exclu-
sive remedy of a shipbuilder employee against his ship-
builder employer for injuries received during the process
of the construction of an incomplete ship is the compen-
sation provided by the applicable compensation act. Haas
v. 653 Leasing Co., 425 F. Supp. 1305 (E. D. Pa. 1977),
Williams v. Avondale, 452 F.2d 955 (5th Cir. 1971);
Alfred v. M/V Margaret Lykes, 398 F.2d 684 (5th Cir.
1968); Frankel v. Bethlem-Farifield Shipyard, Inc., 132
F.2d 634 (4th Cir. 1942), cert denied, 319 US. 746,
(1943).
The adoption of the 1972 amendments did not change
the exclusive compensation remedy provisions of the Act.
Unamended Section 905(a) of the Act provides that the
exclusive remedy of compensation liability is applicable
to:
“the employee * * * and anyone otherwise entitled
to recover damages from such employer in law or
6
amiralty on account of such injury or death.”
(emphasis added)
In Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417
US. 106, (1974), this Court said:
“Indeed, the 1972 amendments to the Harbor
Worker’s Act re-emphasize Congress’ determination
that as between an employer and its injured em-
ployee, the right ot compensation under the Act
should be the employee’s exclusive remedy.” (417
U.S. 112,948. Ct. 2178)
No other Court of Appeals or District Court prior to
the decision in this case had held that a covered ship-
builder employee may mainttain a 33 U.S.C. Section
905(b) third party negligence action aginst his employer
for injuries received while engaged in the completion of a
launched vessel under construction in navigable water.
In Hollister v. Luke Construction, et al, 517 F.2d 920
(5th Cir. 1975), the first case to reach the Fifth Circuit
after the adoption of the 1972 amendments to LHWCA
by a covered shipbuilder employee against his employer
for injuries received in the construction of a ship, the
Court of Appeals held:
“The fact that the barge here was only partially
completed at the time of plaintiff’s injury is thus
dispositive of his claim based on Luke’s alleged
maritime negligence. (Citations omitted) [517 F.2d
922]
This Court considered the adoption of the 1972
amendments to LHWCA in Edmonds v. Compagnie
Generale Transatlantique, 443 U.S. 256, (1979); Bloomer
v. Liberty Mutual Insurance Company, 100 S. Ct. 925
(1980); and Sun Ship, Inc. v. Pennslyvania, 100 S. Ct.
2432 (1980). In each of these cases this Court, after
7
reviewing their legislative history, held that it was not the
purpose of the 1972 amendments to change, sub silento,
the longstatnding rules of federal maritime law applicable
to maritime tort actions based on negligence.
In Edmonds v. Compagnie Generale Transatlantique,
supra, this Court said:
“Admiralty law is judge-made law to a great extent,
United States v. Reliable Transfer Co. , 421 U.S.397,
409, 95 S.Ct. 1708, 1714, 44 L.Ed.2d 251 (1975);
Fitzgerald v. United States Lines Co., 374 U.S. 16,
20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963),
and a longshoreman’s maritime tort action against a
shipowner was recognized long before the 1972
amendments, see Pope & Talbut, Inc. v. Hawn, 346
U.S. 406, 413-414, 74 S.Ct. 202, 207, 98 L.Ed.2d
143 (1953), as it has been since.” (99 S.Ct. 2756)
This Court noted in note 6. to the quoted language:
“33 U.S.C. Section 933(a), which was unchanged
in 1972, states that when a longshoreman “‘deter-
mines that some person other than the employer or
a person or persons in his employ is liable in dam-
ages, he need not elect whether to receive . . . com-
pensation or to recover damages against such third
person.” Section 905(b), which was added in 1972,
states that the longshoreman “may bring an action
against [the shipowner] as a third party in accord-
ance with the provisions of Section 933 . . .” (99
S.Ct. 2756)
In the same case, this Court said:
“In 1972 Congress alighed the rights and liabilities
of stevedores, shipowners, and longshoremen in
light of the rules of maritime law that it chose not
to change. “One of the most controversial and dif-
ficult issues which [Congress was] required to
resolve . . . concern[ed] the liability of vessels, as
third parties, to pay damages to longshoremen who
are injured while engaged in stevedoring opera-
tions.” S. Rep. 8. By now changing what we have
already established that Congress understood to be
the law, and did not itself wish to modify, we might
knock out of kilter this delicate balance. As our
cases advise, we should stay our hand in these cir-
cumstances. Cooper Stevedoring Co. v. Fritz
Kopke, Inc., 417 U.S., at 112, 94 S.Ct., at 2177;
Halcyon Lines v. Haenn Ship Ceiling & Refitting
Corp., 342 U.S., at 285-286, 72 S.Ct., at 279-280.
Once Congress had relied upon conditions that the
courts have created, we are not as free as we would
otherwise be to change them. A change in the con-
ditions would effectively alter the statute by causing
it to reach different results than Congress envis-
ioned. Indeed, Congress might have intended to
adopt the existing maritime rule even for third-party
actions under the Act that are not within the admir-
alty jurisdiction, though we need not and do not
reach that issue today.”” (99 S.Ct. 2763)
This Court in Bloomer v. Liberty Mutual Insurance
Company, supra, said:
“We are unwilling to attribute to Congress an inten-
tion to allow creation of a new liability irreconcil-
able with its general desire to reduce litigation.”
(100 S.Ct. 932)
The legislative history of the adoption of the 1972
amendments, enunciated by this Court in these cases,
together with the explanation of the purpose of the
1972 amendments set out in the U.S. Code Congres-
sional and Administrative News, Second Session 1972,
pages 4698 through 4720, do not support that con-
clusion reached by the Court of Appeals in this case that
9
Congress intended this Court to overrule the holding
in Grant Smith-Porter Ship Co. v. Rohde, supra.
The 1972 amendments evidence a contrary intent.
The Congress added to Section 905(b) the following
language:
“If such person was employed by the vessel to
provide shipbuilding or repair services, no such
action shall be permitted if the injury was caused
by the negligence of persons engaged in providing
shipbuilding or repair services to the vessel.”
The word “persons” is defined in Section 902(1) as:
“(1) The term person means individual, partner-
ship, corporation, or association.”
In adding the cited language to Section 905(b), equally
applicable to both construction and repair services, the
Congress followed the holding of this Court in Calbeck v.
Travelers Insurance Co., supra, that there is no distinction
under the LHWCA between the compensation remedy
rights of employees engaged in repair services to a vessel,
and the compensation remedy rights of employees
engaged in the construction of a vessel.
On the day after the Court of Appeals’ decision in
this case, the Fifth Circuit in Bossard v. Port Allen Marine
Service, Inc., 624 F.2d 671 (5 Cir. 1980) and Hess v.
Port Allen Marine Service, Inc., 624 F.2d 673 (5 Cir.
1980) held that a contractor making ship repairs is not
the owner or owner pro hac vice of the vessel being
repaired, and the exclusive remedy of the employee of
the contractor is for compensation under the LHWCA.
In our petition for rehearing we called to the attention
of the Court of Appeals that such disparate treatment of
employees of ship repair contractors and employees of
10
shipbuilder contractors was not justified under the
LHWCA, nor the 1972 amendments.
We submit that the Fifth Circuit Court of Appeals
made the same error in making such a unwarranted dis-
tinction between employees engaged in ship repair serv-
ices to an incomplete vessel in navigable waters, as was
made by the same Court of Appeals in Calbeck v. Trav-
elers Insurance Co., supra.
We respectfully submit that the decision of the Court
of Appeals in this case conflicts with the decisions of this
Court cited above.
Il.
THE COURT BELOW HAS DECIDED AN
IMPORTANT QUESTION OF FIRST IMPRESSION
WHICH SHOULD BE SETTLED BY THIS COURT.
As noted by this Court in Edmonds v. Compagnie Gen-
erale Transatlantique, supra, this Court has granted cer-
tiorari to resolve questions that have arisen in the Circuit
Courts of Appeals and the District Courts of the meaning
of the 1972 amendments to LHWCA. [433 U.S. 256,
(1979), note 5}.
The decision of the Court below in this case raises im-
portant questions of federal law in resolving the meaning
and application of the 1972 amendments, particularly
Sections 902(1), (2), (3), (21) and Section 905(b) con-
sidered in pari materia with unamended Sections 905(a)
and 933(i).
The Court below decided that under the 1972 amend-
ments a shipbuilder employer constructing a new ship
launched in navigable waters is the owner of a vessel
within the meaning of 33 U.S.C. Section 902(21) and
that Section 905(b) permits a shipbuilder employee to
11
oring a third party negligence action against his employer
notwithstanding the exclusive remedy provisions of Sec-
tions 905(a) and 933(i).
In Northeast Marine Terminal Co., Inc. v. Caputo, 432
U.S. 249, (1977), this Court held that the 197? amend-
ments to LHWCA extended broad compensation coverage
to covered employees, “including a ship repairman, ship-
builder and shipbreaker .” [33 U.S.C. 902(3)].
This Court in Northeast Marine Terminal Co., Inc. v.
Caputo, supra, held, as did the Fifth Circuit Court of
Appeals in Ingalls Shipbuilding Corp., Division of Litton
Systems, Inc. vs. Morgan, supra, that the 1972 amend-
ments should be liberally construed as to compensation
coverage and that the Court “should take an expansive
view of the extended coverage.” (432 U.S. 268).
The questions decided by the court below in this case
as to the meaning of the 1972 amendments do not
involve the extension of compensation coverage, but do
extend third party negligence actions under Section
905(b) in a manner not heretofore allowed by the
LHWCA, nor recognized by federal maritime law, and at
variance with the Congressional intent as set out in the
legislative history of the 1972 amendments to LHWCA.
At the time of the plaintiff’s injury, the court found
that the ship was still under construction and was 97%
complete. The ship was neither in navigation nor oper-
able. At the time of his injury, the shipbuilder-employee
was employed by the shipbuilder for the purpose of mak-
ing the ship operable so that it could subsequently under-
take builder’s sea trails.
The court below found none of these facts controlling.
Relying on its broad compensation coverage holding in
12
Ingalls Shipbuilding Corp., Division of Litton Systems,
Inc. v. Morgan, infra, it held that:
“Incomplete ships upon which 33 U.S.C. Section
902(3) employees are working at a site which
[sic] the coverage of the Act, 33 U.S.C. Section
903, are vessels within the meaning of 33 U.S.C.
Section 902(21). The USS Hewitt was thus moored
to the statute.”
The decision of the Fifth Circuit Court of Appeals in
this case cited no judicial precedent except its prior hold-
ing in Ingalls Shipbuilding Corp., Division of Litton Sys-
tems, Inc. v. Morgan, 551 F.2d 61 (5th Cir. 1977). Mor-
gan was shipfitter helper apprentice working in a fabri-
cation she» in the petitioner’s shipyard in Pascagoula,
Mississippi. He died when a steel plate he was cleaning
fellon him. The Fifth Circuit held:
“The work of shipbuilding, however, commences
before there is a launched vessel . . . Shipbuilders
who do the initial work to construct a vessel for
launching are, nonetheless, just as engaged in ship-
building as those who are completing the task after
something is finished which can be called a ship.”
[551 F.2d 62]
The Court of Appeals held that all shipbuilder
employees engaged in the construction of a ship are
entitled to compensation under Section 905(a) of the
LHWCA, and are also entitled to maintain a third-party
negligence action against their shipbuilder-employer
under Section 905(b) for the same injury.
It is settled law that a ship repair employee may not
maintain a third-party negligence tort action against his
contractor employer on the theory that the employer
was an owner or owner pro hac vice of the vessel under
repair either prior or subsequent to the adoption of the
13
1972 amendments. Olsen v. Todd Shipyards Corp., 435
F.Supp. 568 (W.D. Wa. 1977); Lawson v. United States,
605 F.2d 448 (1979); Bossard v. Port Allen Marine
Service, Inc., supra; and Hess v. Port Allen Marine Serv-
ice, Inc., supra.
These courts rejected the thesis that a contractor
repairing a ship is either the owner or owner pro hac vice
of the ship being repaired. No ratinale would justify
different treatment for a shipbuilder than for a ship
repair employer. This Court expressly rejected such
disparate treatment in Calbeck v. Travelers Insurance
Co., supra.
This Court has consistently sought to maintain the
integrity of the LHWCA as a workmen’s compensation
act. It has approved the broad and liberal interpreation
of the Act for such purposes as reflected in Northeast
Marine Terminal Co., Inc. v. Caputo, supra, without
compromising its exclusive remedy provisions.
The Court of Appeals’ decision in the instant case
departs from tie previous holdings of this Court under
established federal maritime law that a covered employee
cannot maintain a third party negligence action against
his employer for injuries compensable under LHWCA
sustained during the process of the construction of a new
vessel. Grant Smith-Porter Ship Co. v. Rohde, supra.
The broad and sweeping language of the court below
that the DD-966 (USS Hewitt), while under construction
in the petitioner’s outfitting dock within its shipyard, was
“moored to the statute’? because the respondent was a
covered employee under the Act will open the flood gates
to a multitude of third-party negligence actions by cov-
ered employees against their shipbuilder-employers.
14
There is no logical reason for holding that a contractor
who is repairing a ship temporarily removed from naviga-
tion is not a vessel owner for the purpose of a 33 U.S.C.
Section 905(b) negligence action, but that a contractor
who is constructing a ship that has not been in navigation
and has not been delivered to its owner is a vessel owner
and thus exposed to dual liability in the face of the clear
language of Sections 905(a) and 933(i).
The decision of the court below involves a question of
paramount importance to the entire shipbuilding industry
of the United States. The broad and sweeping per curiam
decision of the Court of Appeals will open a Pandora’s
box of litigation, not only by shipbuilders but by every
covered employee under the 1972 amendments.
The third party negligence actions allowed under Sec-
tion 905(b) must be uniformly interpreated as to all cate-
gories of maritime employees covered by the Act. The
decision of the Court of Appeals has converted the
LHWCA from a workmen’s compensation act to a third
party negligence tort act.
We respectfully submit that this massive assault on the
integrity of the exclusive compensation remedy provis-
ions of the LHWCA should be reviewed by this Court,
and that this Court should reaffirm its previous holdings
that the LHWCA is a workmen’s compensation act,
notwithstanding the adoption of the 1972 amendments.
15
Ill.
THE COURT OF APPEALS HAS RENDERED
A DECISION IN CONFLICT WITH THE DECISIONS
OF OTHER COURTS OF APPEAL ON THE SAME MATTER.
Respondent argued in the court below that his 33
U.S.C. 905(b) third party negligence action against the
petitioner should be permitted on the theory that the
launched, but incomplete ship, in the process of construc-
tion was a vessel owned by the petitioner under the
doctrine of Reed v. The Yaka, 373 US. 410, (1963).
Prior to the adoption of the 1972 amendments to
LHWCA the Fifth Circuit Court of Appeals considered
The Yaka doctrine in the context of the same claim that
respondent urged in the court below. In Alfred v. M/V
Margaret Lykes, 398 F.2d 684 (1968), the Court of
Appeals said:
“Appellant urges that Avondale was either the
owner or owner pro hac vice of the vessel, seeking to
invoke the doctrine of Reed v. The Yaka, 373 US.
410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). Accept-
ing, arguendo, this claim, we consider it in the same
light as the claim here asserted against Lykes. Nei-
ther The Yaka nor its lineal ancestor, Seas Shipping
Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872,
90 L.Ed. 1099 (1946), do good service to appellant
here. They are inapposite. Each one of those cases
dealt with situations which arose with respect to a
completed, commissioned vessel in service in naviga-
tion. * * * Appellant’s exclusive remedy with
respect to Avondale is under the Longshoremen’s
and Harbor Workers’ Compensation Act, supra. . .”
(emphasis added) (398 F.2d 686)
We submit that this decision of the Court of Appeals
correctly stated that applicable law both before the adop-
16
tion of the 1972 amendments to LHWCA and to the case
before the Court. In a painstaking analysis of the applica-
bility of the doctrine of Reed v. The Yaka, supra, to a
case almost factually identical to this case, in Haas v.
653 Leasing Co., 425 F.Supp. 1305 (1977), District
Judge Edward R. Becker noted that the plaintiff in that
case claimed:
“* * * that his employer Sun Ship is liable to him
notwithstanding the LHWCA compensation bar
because of its role as an owner pro hac vice of the
virtually completed hull which, though not a vessel
in commerce, was nonetheless in navigable waters,
hence subject to maritime jurisdiction. This argu-
ment proceeds from an analysis of the Supreme
Court case of Reed v. The Yaka, 373 U.S. 410, 83
S.Ct. 1349, 10 L.Ed.2d 448 (1963) and confronts
the outer limits of what Judge Gibbons has des-
cribed as the ‘Sieracki-Ryan end-run.’ As will be
seen, we must reject the owner pro hac vice argu-
‘ment because of its inappliability (at least prior to
the 1972 amendments to the LHWCA) to negligence
as opposed to unseaworthiness claims, and grant
Sun Ship’s motion.” [425 R.Supp. 1397 (1977)]
While, as Judge Becker points out, the doctrine of
Reed v. The Yaka, supra, is not applicable to an incom-
plete vessel in the process of construction notwithstand-
ing that it has been launched in navigable waters, there is
a serious and unresolved conflict between the Circuit
Courts of Appeal as to whether the Reed v. The Yaka
doctrine applicable to completed ships in navigation has
survived the adoption of the 1972 amendments to
LHWCA.
The First Circuit (ruling by way of dictum), Murphy
v. Woods Hole, Martha’s Vineyard, et al., 545 F.2d 235
17
(1 Cir. 1976), and the Ninth Circuit, Arvidson v. Dilling-
ham Corporation, 462 F.2d 1 (9 Cir. 1972), cert. denied,
409 US. 983, (1972), have held that the extensive
remedy of a covered employee is the compensation
provided by the Act, and that the employees may not
maintain a negligence action against his employer qua
vessel.
District Courts within the Ninth Circuit have reached
decisions consistent with the holding of that Circuit.
Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360
(N.D. Ca. 1977), and Baker v. Pacific Far East Lines,
Inc., 451 F.Supp. 84 (N.D. Ca. 1978), hold that such an
action may not be maintained, notwithstanding the 1972
amendments.
The Second, Third, Fourth, and Fifth Circuits relying
on Reed v..The Yaka, 373 US. 410, (1963), have taken
contrary positions. Napoli v. Hellenic Lines, 536 F.2d
505, 509 (2nd Cir. 1976); Griffith v. Wheeling Pittsburgh
Steel Corporation, 521 F.2d 31, 41-44, (3rd Cir. 1975),
cert. denied, 423 US. 1054, (1976); Allied Towing
Corp. v. Tatem, 580 F.2d 702 (4th Cir. 1978); and Smith
v. M/V Captain Fred, 546 F.2d 702 (5th Cir. 1977).
The District Court within those Circuits have likewise
followed the holdings of the controlling appellate Court.
Duncan v. Dravo Corp., 426 F.Supp. 1048 (W.D. Pa.
1977).
In all of the cases cited, the vessel involved was a com-
pleted vessel in commerce or navigation and the Section
905(b) negligence action was against the shipowner.
The existing division in the Circuits is succinctly stated
in Buna v. Pacific Far East Line, Inc., supra, as follows:
“Thus, barring Section 905(b) negligence suits
when the vessel owner is the employer is both log-
18
ical and consistent with the philosophy underlying
workmen’s compensation schemes.
“Second, negligence actions are not equivalent to
actions based on the doctrine of seaworthiness for
purposes of sidestepping the exclusive remedy lang-
uage of the LHWCA. Arvidson v. Dillingham Corp.,
462 F.2d 1 (9 Cir.) cert. denied, 409 U.S. 983,
(1972). Interpreting the pre-1972 amendment
LHWCA, the Arvidson court saw a clear distinction
between the traditional, absolute, and non-delegable
obligation of a shipowner to provide a seaworthy
vessel and ordinary negligence by that shipowner.
The court concluded that the right to proceed against
a vessel owner/employer should not be extended to
negligence claims.
“The Court of Appeals for the First Circuit followed
the Arvidson court in distinguishing between sea-
worthiness and negligence in deciding Murphy v.
Woods Hole, Martha’s Vineyard and Nantucket
Steamship Authority, 545 F.2d 235 (1976). Al-
though the Murphy decision interpreted the pre-
amendment law, the court criticized Griffith and
discussed the 1972 amendments in concluding that
an injured harbor worker’s negligence action against
his employer is barred by the exclusive remedy pro-
vision (Section 905) of the LHWCA.” [441 F.Supp.
1367]
In view of the existing conflicts between the Circuit
Courts of Appeal on the question of whether under the
1972 amendments a covered employee may bring a Sec-
tion 905(b) action against his employer qua vessel, the
holding in this case extending the Reed v. The Yaka doc-
trine to incomplete ships in the process of construction
is certain to evoke further conflicting and irreconcilable
holdings among the Circuit Court of Appeals and District
19
Courts. This Court should resolve such conflicts to
decide the question raised but left unanswered in
Edmonds v. Compagnie Generale Transatlantique, supra,
in which this Court said:
“* * * Indeed, Congress might have intended to
adopt the existing maritime rule even for third-
party actions under the Act that are not within
the admiralty jurisdiction, though we need not and
do not reach that issue today.” [99 S.Ct. 2763]
CONCLUSION
Congress, in enacting the 1972 amendments to the
LHWCA, stated in the legislative history of the Act that
legal questions arising under 33 U.S.C. Section 905(b)
negligence actions should be determined as a matter of
federal law. Federal law is currently in a state of
upheaval because of the opinion of the court below in
this case. Shipbuilder-employers are now subject to
third-party negligence actions by their shipbuilder-
employees during any stage of construction of a new
20
ship notwithstanding that the employer has paid full
compensation under Section 905(a) of the LHWCA to
the covered employees.
For the reasons stated, it is respectfully submitted
that this petition for certiorari should be granted.
Respectfully submitted,
By:
KARL WIESENBURG, ESQ,
WIESENBURG & REED
Post Office Box 1428
Pascagoula, Mississippi 39567
(601) 762-3255
Attorney for Petitioner.
Of Counsel:
Joun H. Carson, Esq,
Post Office Box 149
Pascagoula, Mississippi 39567
ROBERT L, ACKERLY, Esq,
816 Connecticut Avenue, N.W.
Washington, D.C. 20006
APPENDIX
la
APPENDIX A
Alvin L. LUNDY, Plaintiff-Appellant,
v.
LITTON SYSTEMS, INC.,
Defendant-Appellee.
No. 79-1061.
United States Court of Appeals,
Fifth Circuit.
Aug. 20, 1980.
Appeal from the United States District Court for the
Southern District of Mississippi.
Before GOLDBERG, TATE, and SAM D. JOHNSON,
Circuit Judges.
PER CURIAM.
On July 1, 1976, plaintiff-appellant, Alvin L. Lundy,
who is a meter calibrator, was working on the USS
Hewitt, DD-966, when he fell through an escape hatch
which had been left open by one of the ship’s crew.
At the time of the accident. the USS Hewitt, under-
going construction and preparations for sea trials, was
97% complete and moored in an outfitting dock. To
recover for his injuries, appellant brought suit against his
employer, Litton Systems, Inc., defendant-appellee,
which was also owner of the ship. Appellant claimed
entitlement to recovery under the doctrine of seaworthi-
ness, the Jones Act, 46 U.S.C. §688, and the Longshore-
men’s and Harbor Workers’ Compensation Act (LHWCA),
33 U.S.C. §905(b). He appeals from the district court’s
dismissal of his claims upon appellee’s motion for sum-
mary judgment. Because appellant had abandoned his
claims brought under the doctrine of seaworthiness and
2a
the Jones Act, we need only determine whether he has a
claim under 33 U.S.C. §905(b).! We find that he does,
and, accordingly, we reverse.
The district court held that an incomplete ship was
not a vessei for purposes of section 905(b). We disagree.
The definitional section of the LHWCA provides that
“[t] he term ‘vessel’ means any vessel upon which or in
connection with which a person entitled to benefits
under this chapter suffers injury or death arising out of or
in the course of his employment... .” 33 U.S.C.A.
§902(21)(West 1978). Persons entitled to benefits under
the LHWCA are “employees.” See td §903(a). “The
term ‘employee’ means any person engaged in maritime
employment, including any longshoreman or other per-
son engaged in longshoring operations, and any harbor-
138 U.S.C.A. §905(b)(West 1978) provides the following:
In the event of injury to a person covered under this chap-
ter caused by the negligence of a vessel, then such person, or
anyone otherwise entitled to recover damages by reason
thereof, may bring an action against such vessel as a third
party in accordance with the provisions of section 933 of this
title, and the employer shall not be liable to the vessel for
such damages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such person was
employed by the vessel to provide stevedoring services, no
such action shall be permitted if the injury was caused by the
negligence of persons engaged in providing stevedoring ser-
vices to the vessel. If such person was employed by the ves-
sel to provide ship building or repair services, no such action
shall be permitted if the injury was caused by the negligence
of persons engaged in providing ship building or repair ser-
vices to the vessel. The liability of the vessel under this sub-
section shall not be based upon the warranty of seaworthi-
ness or a breach thereof at the time the injury occured. The
remedy provided in this subsection shall be exclusive of all
other remedies against the vessel except remedies available
under this chapter.
3a
worker including a ship repairman, shipbuilder, and ship-
breaker . . . .”’ Id. §902(3). we have previously held
that “[s]hipbuilders who do the initial work to con-
struct a vessel for launching are . . . just as engaged in
shipbuilding as those who are completing the task after
something in finished which can be called a ship.” Ingalls
Shipbuilding Corp., Division of Litton Systems, Inc. v.
Morgan, 551 F.2d 61 (5th Cir. 1977). Thus, incomplete
ships upon which 33 U.S.C. §902(3) employees are
working at a site which the coverage of the Act, 33
U.S.C. §903, are vessels within the meaning of 33 U.S.C.
§902(21). The USS Hewitt was thus moored to the
statute.
REVERSED and REMANDED.
4a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
[Filed Dec. 11, 1978]
Civil Action No. $78-0286(R)
ALVIN L. LUNDY,
Plaintiff,
V.
LITTON SYSTEMS, INC., ACORPORATION,
Defendant
JUDGMENT
This action came on for consideration before the
Court, Honorable Dan M. Russell, Jr., United States Dis-
trict Judge, presiding, and the issues having been duly
considered and a decision having been duly rendered
granting the alternative motion for summary judgment of
the defendant Litton Systems, Inc.,
IT IS ORDERED AND ADJUDGED that the alterna-
tive motion of the defendant Litton Systems, Inc. for
summary judgment is granted and the complaint is dis-
missed, with prejudice.
Dated at Biloxi, Mississippi, this the 11th day of
December, 1978.
HARVEY G. HENDERSON, Clerk
By: /s/ Agnes Dyesc
Deputy Clerk
5a
APPENDIX C
UNITED STATES COURT OF APPEALS
Fifth Circuit
Office of the Clerk
August 20, 1980
Gilbert F. Ganucheau Tel 504/589-2570
Clerk 600 Camp Street
New Orleans, La. 70130
MEMORANDUM TO COUNSEL OR PARTIES
LISTED BELOW:
No. 79-1061 — ALVIN L. LUNDY vs. LITTON
SYSTEMS, INC.
Dear Counsel:
Enclosed is a copy of the Court’s opinion this day ren-
dered in the above case. A judgment has this day been
entered in accordance therewith pursuant to Rule 36 of
the Federal Rules of Appellate Procedure.
Rules 39, 40 and 41, F.R.A.P., govern costs, petitions
for rehearing and mandates, respectively. A petition for
rehearing must be filed in the Clerk’s Office within 14
days from this date. Placing the petition in the mail on
the 14th day will not suffice.
Local Rule 17 provides that “A motion for a stay of the
issuance of a mandate in a direct criminal appeal filed
under F.R.A.P. Rule 41 shall not be granted simply upon
request. Unless the petition sets forth good cause for
stay or clearly demonstrates that a substantial question is
to be presented to the Supreme Court, the motion shall
be denied and the mandate thereafter issued forthwith.”
6a
If you are court-appointed counsel, your attention is
called to Local Rule 7 which provides: ‘“‘Appointed coun-
sel shall, in the event of affirmance or other’ decision
adverse to the party represented, promptly advise him in
writing of his right to seek further review by the filing of
a petition for writ of certiorari with the Supreme Court,
and shall file such petition, if requested by such party in
writing to do so.”
Very truly yours,
GILBERT F. GANUCHEAU, Clerk
By /s/ Clare F. Sachs
Deputy Clerk
enc.
cc: Mr. Bobby G. O’Barr
Mr. Karl Wiesenburg
Mr. French Caldwell
7a
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
[Filed Oct. 8, 1980]
No. 79-1061
ALVIN L. LUNDY,
Plaintiff-Appellant,
versus
LITTON SYSTEMS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
ON PETITION FOR REHEARING AND PETITION
FOR REHEARING EN BANC
(Opinion 8/20/80, 5 Cir., 197, F.2d...)
(October 8, 1980)
Before GOLDBERG, TATE and SAM D. JOHNSON,
Circuit Judges.
PER CURIAM:
(X) The Petition for Rehearing is DENIED and no mem-
ber of this panel nor Judge in regular active service on the
Court having requested that the Court be polled on re-
hearing en banc, (Rule 35 Federal Rules of Appellate Pro-
cedure; Local Fifth Circuit Rule 16) the Petition for
Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/s/ [Illegible]
United States Circuit Judge
8a
APPENDIX E
UNITED STATES COURT OF APPEALS
Fifth Circuit
Office of the Clerk
October 22, 1980
Gilbert F. Ganucheau Tel 504-589-6514
Clerk 600 Camp Street
New Orleans, La. 70130
Mr. Karl Wiesenburg
Attorney at Law
P.O. Box 26
Pascagoula, MS. 35967
NO. 79-1061 — ALVIN L. LUNDY v.
LITTON SYSTEMS, INC.
MANDATE STAYED TO AND INCLUDING Novem-
ber 21, 1980
Dear Counsel:
The court has this day granted a stay of the issuance of
the mandate to the date as shown above. If during the
period of the stay there is filed with the clerk of this
court a notice from the clerk of the Supreme Court that
the party who has obtained the stay has filed a petition
for the writ in that court, the stay shall continue until
final disposition by the Supreme Court. Upon the filing
of a copy of an order of the Supreme Court denying the
petition for writ of certiorari, the mandate shall issue
immediately under Rule 41, FRAP.
Under revised Rule 21(1) of the Supreme Court, effective
July 1, 1970, a record is no longer required in connection
with an application for writ of certiorari, and therefore,
9a
will not be routinely prepared by this office (38LW
3502).
A copy of the opinion, judgment and denial of rehearing
are still required by the Supreme Court to be incorpor-
ated as an appendix to your petition. Enclosed are copies
of the said documents which have been entered in this
cause.
Very truly yours,
GILBERT F. GANUCHEAU, CLERK
/s/ Jason Perkins
Deputy Clerk
/bh
enc.
cc: Mr. Bobby G. O’Barr
10a
APPENDIX F
STATUTES INVOLVED
33 U.S.C. 902
(1) The term ‘“‘person” means individual, partnership,
corporation, or association.
(2) The term “injury” means accidental injury or death
arising out of and in the couse of employment, and such
occupational disease or infection as arises naturally out of
such employment or as naturally or unavoidably results
from such accidental injury, and includes an injury
caused by the willful act of a third person directed
against an employee because of his employment.
(3) The term “‘employee’’ means any person engaged
in maritime employment, including any longshoreman or
other person engaged in longshoring operation, and any
harborworker including a ship repairman, shipbuilder,
and ship-breaker, but such term does not include a master
or member of a crew of any vesse!, or any person engaged
by the master to loan or unload or repair any small vessel
under eighteen tons net.
(4) The term ‘“‘employer” means an employer any of
whose employees are employed in maritime employment,
in whole or in part, upon the navigable waters of the
United States (including any adjoining pier, wharf, dry
dock, terminal, building way, marine railway, or other
adjoining area customarily used by an employer in load-
ing, unloading, repairing, or building a vessel). * * *
(21) The term ‘‘vessel”” means any vessel upon which
or in connection with which any person entitled to bene-
fits under this chapter suffers injury or death arising
out of or in the couse of his employment, and said ves-
sel’s owner, owner pro hac vice, agent, operator, charter
or bare boat charterer, master, officer, or crew member.
lla
33 U.S.C. 903
(a) Compensation shall be payable under this chapter
in respect of disability or death of an employee, but only
if the disability or death results from an injury occurring
upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building
way, marine railway, or other adjoining area customarily
used by an employer in loading, unloading, repairing, or
building a vessel). * * *
33 U.S.C. 905
(a) The liability of an employer prescribed in section
904 of this title shall be exclusive and in place of all other
liability of such employer to the employee, his legal rep-
resentative, husband or wife, parents, dependents, next
of kin, and anyone otherwise entitled to recover damages
from such employer at law or in admiralty on account of
such injury or death, except that if an employer fails to
secure payment of compensation as required by this
chapter, an injured employee, or his legal representative
in case death results from the injury, may elect to claim
compensation under the chapter, or to maintain an action
at law or in admiralty for damages on account of such
injury or death. In such action the defendant may not
plead as a defense that the injury was caused by the negli-
gence of a fellow servant, or that the employee assumed
the risk of his employment, or that the injury was due to
the contributory negligence of the employee.
(b) In the event of injury to a person covered under
this chapter caused by the negligence of a vessel, then
such person, or anyone otherwise entitled to recover
damages by reason therof, may bring*an action against
such vessel as a third party in accordance with the provis-
ions of section 933 of this title, and the employer shall
12a
not be liable to the vessel for such damages directly or
indirectly and any agreements or warranties to.the con-
trary shall be void. If such person was employed by the
vessel to provide stevedoring services, no such action
shall be permitted if the injury was caused by the negli-
gence of persons engaged in providing stevedoring serv-
ices to the vessel. If such person was employed by the
vessel to provide ship building or repair services, no such
action shall be permitted if the injury was caused by the
negligence of persons engaged in providing ship building
or repair services to the vessel. The liability of the vessel
under this subsection shall not be based upon the war-
ranty of seaworthiness or a breach thereof at the time the
injury occurred. The remedy provided in this subsection
shall be exclusive of all other remedies against the vessel
except remedies available under this chapter.
33 U.S.C. 933
(i) The right to compensation or benefits under this
chapter shall be the exclusive remedy to an employee
when he is injured, or to his eligible survivors or legal
representatives if he is killed, by the negligence or wrong
of any other person or persons in the same employ; Pro-
vided, That this provision shall not affect the liability of
a person other than an officer or employee of the
employer.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.