# Petition — Louisiana Department of Highways v. Crador > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1259%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 915 ## Text Office-Supreme Court, U.S. PILED JAN 30 1981 LEXAniw -& L. STEVAS, In the - Supreme Court of the United States OCTOBER TERM, 1980 LOUISIANA DEPARTMENT OF HIGHWAYS, STATE OF LOUISIANA, in personam, and HOUSTON GENERAL INSURANCE CO., Defendants-Petitioners versus WINNIE OLA CRADOR AS EXECUTRIX OF THE ESTATE OF HURBY CRADOR, ETC., Plaintiff-Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR CERTIORARI HERBERT & ABBOTT ANDRE’ J. MOULEDOUX MAURICE C. HEBERT, JR. 666 Poydras Street, Suite 500 New Orleans, Louisiana 70130 Telephone : (504) 568-9393 Attorneys for Louisiana Department of Highways, State of Louisiana, and Houston General Insurance Co., Petitioners RONALD R. THOMPSON 6161 Perkins Road, Suite 2B Baton Rouge, Louisiana 70808 Attorney for Louisiana Department of Highways, State of Louisiana, Petitioner Feet See meet anak tert SNR SRI RR AR rm St ACN SRR ce AB Letter Service, inc., 327 Chartres St., New Orleans, La. (504) 581-5555 i QUESTIONS PRESENTED FOR REVIEW WHETHER, IN VIEW OF THE ELEVENTH AMEND- MENT OF THE UNITED STATES CONSTITUTION, THE FEDERAL COURTS HAVE JURISDICTION OVER THE STATE OF LOUISIANA IN A CLAIM BROUGHT UNDER THE JONES ACT AND GENERAL MARITIME LAW. WHETHER AN ALLEGED JONES ACT SEAMAN-STATE EMPLOYEE MAY MAINTAIN AN ACTION AGAINST THE STATE OF LOUISIANA IN THE FEDERAL COURTS ABSENT AN EXPRESSED WAIVER BY THE STATE OF ITS ELEVENTH AMENDMENT IMMUNITY. .. WHETHER CRADOR’S SOLE REMEDY AGAINST THE STATE OF LOUISIANA AND ITS INSURER LIES IN THE LOUISIANA STATE COURT. WHETHER THE LOWER COURTS ABUSED THEIR DIS- CRETION AND/OR ERRED IN REFUSING TO PERMIT INTRODUCTION OF CRADOR’S WORK HISTORY FOR THE JURY’S DETERMINATION OF SEAMAN STATUS. WHETHER AN INDIVIDUAL WHO PERFORMS 94% OF THE TIME OF HIS EMPLOYMENT IN LAND-BASED ACTIVITIES IS A JONES ACT SEAMAN. WHETHER CRADOR WAS A JONES ACT SEAMAN IN FACE AND IN LAW AND ENTITLED TO ASSERT A CLAIM UNDER THE JONES ACT AND/OR GENERAL MARITIME LAW OR WAS CRADOR’S EXCLUSIVE REMEDY UNDER THE LOUISIANA WORKMEN’S COMPENSATION ACT, L.S.A. - R.S. 23:1034, ET SEQ. * tae i | ‘i TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ...........+.+- i TASS CP CORTE IN LD 605d So bia e ec ec tbe vocscba de ii, iii, iv TABLE OF AUITHRMAITEES 6336 i devewecsueecsvees v, vi PRA VE hick cb ewe een d knee 64 be eds .e we eee bE 1 OPINIONS BELOW oo ccc ctw scccivvsvevcvececees 1 GROUNDS FOR JURISDICTION ..... cece eee eee eee 1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED 2... ccccvcccsccvecvccvcces 2 EXISTENCE OF PROPER JURISDICTION BELOW ....... 2 STATEMENT OF THE CASE ...weccccccccccccvcsesces 2 - REASONS FOR GRANTING OF WRIT ..........0e00005 8 ARGUMENT IGENMBAL) (505.005 .dcck cies cadahcaeves 8 ARGUMENT ON QUESTION NOS. 1, 2, &3 ........0008. 9 ARGUMENT ON QUESTION NOS. 4,5 & 6 ............ 14 COM AATIIINS -p.s:t.s:0 htc 0p 6000 bib baie es SAdn peas HORS 27 PROOF AE SERVI: ia sinc h ce eid vie dian de Cie tees 29 APPENDIX A: Crador v. Louisiana Dept. of Highways, 625 F.2d 1227 (5th Cir. 1980), Judgment of Seppember 16; 1900: i565 555 5 sees 6 Was deus A-1 APPENDIX B: Order of Fifth Circuit Court of Appeals denying rehearing en banc, November 3, 1980 ........... A-11 APPENDIX C: Judgment of District Court and Verdict of Jury, November 17,1977) 6... 6c b eevee cee eee A-12 TABLE OF CONTENTS (Continued) APPENDIX D: Amended Judgment of District Court, | Se os ks gosh ack aww klelae bee oO A-14 APPENDIX E: Order for Stay of Judgment, WN EC RTE Sacks ewan eos sccae heen tiny A-16 APPENDIX F: Order of District Judge Edwin Hunter denying Petitioners’ Motion for Summary ee RP? LORE ae A-17 APPENDIX G: Memorandum Ruling of District Judge Hunter denying Petitioners’ Motion for Rehearing and Summary Judgment May 20,1977 ............. A-20 APPENDIX H: ° v. Gegenheimer, C.A. 79-1804 (5th Cir. 1980), Judgment of December 3, 1980 .......... A-22 APPENDIX I: . | Excerpt of District Court trial proceedings below, pages 49-57, November 14,1977 ......... A-28 APPENDIX J: Jones Act, 46 U.S.C. §688 ...........-0 0. 0eee A-36 *-* iv TABLE OF CONTENTS (Continued) Page APPENDIX K: 28 U.S.C. §1254(1) 2... cece eee ence eee nees A-37 APPENDIX L: Louisiana Constitution Article XII §10 (1974) ....A-38 APPENDIX M: Louisiana Acts 1975, No. 434 §1: a) > MCE f''o c h'c.s 0000.0 00% 0 wb b's A-39 Oy RE URE o ooos coecen sc ccbecwoas A-39 Ch: Ree SEO SUNS So hee eae ceeweese A-39 GF SRA SE THOME os eck A-39 | v TABLE OF AUTHORIT IES Page Constitutional and Statutory Authorities: United States Constitution amend. XI ...............-05. : Louisiana Constitution Art. XII §10 (1974) ............- 10 MCU “ide ooi0.d eet oS Eas we ca 000068 bebe tees 11 en, ea ee A Ven a eee ono u pale be 11 aI RD he stk & Keo 0.0 4.0 0.0 ae Whee og 0 wae 11 Cases: Alabama v. Pugh, 538 U.S. 781, 98 S.Ct. 3057, Oe BME OE 9998 COUION io io ccc sakcacascdaus 14 Billings v. Chevron U.S.A., Inc., 618 F.2d 1108 Ne TN eC So tt wa vos hk din ssh 23 Brown v. ITT Rayonier, Inc., 497 F.2d 234 CIEE (C VGi0u 04 bedes teases cccece 23, 24,25 v. Gegenheimer, C.A. No. 79-1805 SU BOE es 54s CV NESE Rhe Whw os ics ceanes 12 Davis v. Hill Engineering, Inc., 549 F.2d 314 Te leo ces can vomig.n oi 20 Dugas v. Pelican Const. Co., 481 F.2d 773 IR SS Sates 8 ced de clees 24 Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, og MG de Sagas Oe 10,14 Employees of Dept. of Public Health and Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1619, S6.E ks SAS TESTS a ss vce ces 10,12 Fazio v. Lykes Bros. S. S. Co., Inc., 567 F.2d 301 RM Is G's cs whiep heen pach betes dees < 18 Ford Motor Co, v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 80 L.Ed 389 (1945) .......... 10, 11,14 a vi TABLE OF AUTHORITIES (Continued) Page Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed.1121 ee Kea sad pues eK. 11 Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir. 1977), rev’d on other grounds, 435 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) ........ 25 Holland v. Allied Structural Steel Co., 539 F.2d 476 (SEE RAE. 5h a Cw RAO ERENT OR ARERR 4 on 08 23 Intracoastal Transp., Inc. v. Decatur County, Georgia, 482 F.2d 361 (5th Cir. 1973) ...... ccc. eeeeees 13 Keener v. Transworld Drilling Co., 468 F.2d 729 ile ee GIO ei ans ck bans cass 19, 22, 24 Kirk v. Land and Marine Applicators, Inc., 555 F.2d Fe | ESS AE DA ee 23 Longmire v. Sea Drilling Corp., 610 F.2d 1342 NR Se cas sunt cabs ees 19, 24 In re State of New York, 256 U.S. 490, 41 S.Ct. 588 Re oC te a a 9 Red Star Towing and Transportation Co. v. Dept. of Transp. of N.J., 423 F.2d 104 (3rd Cir.1970) ....... 9 Rotolo v. Halliburton Co., 317 F.2d 9 (5th Cir. 1963) ..... 16\ Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 533, 42 L.Ed. Se ea Sop ass Our a ta mannenig aman ts Spr 14 Stokes v. B. T. Oilfield Services, Inc., 617 F.2d See as BOE os he ee ose MoM ee hie ee ses 25 Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42 ee POND es eA aa eas oe 24 Usry v. Louisiana Dept. of Highways, 459 F.Supp. 56 (Uk te SOT 526: ois a 10 IN THE SUPREME COURT OF THE UNITED STATES LOUISIANA DEPARTMENT OF HIGHWAYS, STATE OF LOUISIANA, in personam, and HOUSTON GENERAL INSURANCE CoO., Defendants-Petitioners versus WINNIE OLA CRADOR AS EXECUTRIX OF THE ESTATE OF HURBY CRADOR, ETC., Plaintiff-Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR CERTIORARI PRAYER Petitioners pray for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit to review the judg- ment of that court entered on September 18, 1980. l OPINIONS BELOW The judgment of the court below (Appendix A) is reported at 625 F.2d 1227 (5th Cir. 1980), rehearing en banc denied, 632 F.2d 894 (5th Cir. 1980) (Appendix B). The opinions of the district court (Appendixes GROUNDS FOR JURISDICTION Petitioners, Louisiana Depastment of Highways, State of Louisiana, and Houston General Insurance Company pray that a writ of certiorari issued to review the judgment of the United States Court of Appeals for the Fifth Circuit, entered on the 5 ite 18th day of September, 1980 in the matter reported at 625 F.2d 1227 (5th Cir. 1980) (Appendix A). Jurisdiction of this Court is invoked pursuant to Title 28, Section 1254, Paragraph 1, United States Code. (See Appen- dix K). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED United States Constitution Amendment XI: The Judicial power of the United States shall not be construed to emgend to any suit in law or equity, commenced or prosecuted = one of the United States by Citizens of another State, or by Citizens or Sub- jects of any Foreign State. The Jones Act, 46 U.S.C. §688 (Appendix J); 28 U.S.C. §1254 (1) (Appendix K); Louisiana Constitution Article XII $10 (1974) (Appendix L); LSA-R.S. 13:5101-2, 5105-6 (Appendix M). EXISTENCE OF PROPER JURISDICTION BELOW Petitioners seek review of the judgments of the United States Court of Appeals and District Court on the basis there was no jurisdiction below. ? STATEMENT OF THE CASE A. Course of proceedings. Hurby Crador, an Auto Mechanic II, employed by the Louisiana Department of Highways, State of Louisiana (here- inafter referred to as “Highway Department”), filed this suit claiming damages against the Highway Department, as his em- - | 3 ‘ployer and as owner and operator of the GRAND LAKE FERRY, under the Jones Act, 46 U.S.C.A. §688, and the General Maritime Law, for negligence and unseaworthiness. Additionally, Crador sued Houston General Insurance Company, the liability insurer of the Highway Department. The Highway Department and Houston General (herein- after jointly referred to as “‘Petitioners’’) filed an Answer and «n Amended Answer denying that they were negligent or the ves- sel unseaworthy and further denied that Crador had the requi- site “status” to sue under the Jones Act or the General Mari- time Law. Petitioners filed a Motion to Dismiss and/or for Summary Judgment on the grounds that plaintiff lacked ‘‘seaman”’ status to sue under the Jones Act adn the General Maritime Law. Ar- gument on the Motion was heard by District Judge Edwin F. Hunter, Jr., who initially granted petitioners’ Motion, upon oral argument; however, Judge Hunter granted a rehearing to Crador. On rehearing, Judge Hunter denied petitioners’ Motion even though he was of the opinion that Crador “‘wasn’t a mem- ber of the crew of that vessel [GRAND LAKE FERRY] in the terms that he was permanently assigned to it.” Judge Hunter made the observation that “the issue in this case is whether or not there is sufficient evidence in this case that a jury could de- termine as a factual situation that this man was a member of a crew of a vessel or vessels.” (emphasis added). Petitioners assert that it is important that the reasoning for Judge Hunter’s denial of petitioners’ Motion be set out with the following portion: —- S i 4 It really does not matter too much in the final analysis whether Crador is a seaman or not. This is so because under the rule of Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977) a — aboard a ves- sel may sue the vessel on which he was in- jured for both its negligence and unsea- worthiness, when as here the owner of the vessel is also against the Department of Highways if he was injured as a result of the ferry’s negligence and/or unseaworthi- ness. (Appendix F). Judge Hunter’s reliance upon the court’s decision in Smith v. M/V Captain Fred, 545 F.2d 119 (5th Cir. 1977), was mis- placed in denying petitioners’ Motion. Petitioners brought to the attention of the Court that a definitive ruling on status would answer questions as to right to trial by jury, right to a claim for maritime tort or unseaworthiness, different concepts of negligence under Smith v. M/V Captain Fred, supra, and maritime negligence, etc. However, in response to petitioners’ Motion for Rehearing, Judge Hunter again took the position that, although the “ultimate material facts regarding Crador’s status are not in serious dispute”, regardless of the Jones Act status, “‘Crador would have a cause of action against the High- way Department if the ferry was negligent or if there was un- seaworthiness.” Petitioners filed a Supplemental Memorandum in Support of its Motion to Dismiss and/or for Summary Judg- ment; however, again the Motion of petitioners on the issue of status was denied. (Appendix G). The case was set down for trial with a jury before Judge vy Earl E. Veron, who had replaced Judge Hunter on November 14, 1977. The jury trial was bifurcated to determine the issue of seaman status prior to and apart from the issue of liability and damages. The case was submitted to the jury on the issue of status and a verdict was returned in favor of Crador. The trial continued immediately on the issue of liability and damages. The case was submitted to the jury on the issue of unseaworthi- ness, negligence and contributory negligence and a verdict was returned in favor of Crador in the amount of $250,000.00 The lower court thereafter, on November 17, 1977, entered judg- ment in favor of Crador and against petitioners in the amount of $250,000.00 (Appendix C). Said judgment was amended by Judge Veron on November 31, 1977, to limit the liability of Houston General to the remaining amount of its $100,000.00 policy limits of $86,737.34, for which amount Houston General and the Highway Department were held to be liable in solido, with the Highway Department remaining solely liable for the remainder of the $250,000.00 judgment (Appendix D). On December 7, 1977, petitioners timely filed their post- trial Motions for Judgment N.O.V., Partial Judgment N.O.V., New Trial, Partial New Trial and Remittitur, which Motions were presented before Judge Veron and denied. Petitioners timely filed an appeal to the Court of Appeals. Oral argument was presented to the Fifth Circuit panel consisting of Circui: Judges John R. Brown, Walter P. Gewin and Henry A. Politz. Follwing oral argument, the panel affirmed ie say) i 6 the rulings and judgment of the lower court in all respects, 625 F.2d 1227 (5th Cir. 1980) (Appendix A). Follwoing the opinion of the Fifth Circuit panel, petitioners timely filed a Petition for Rehearing En Banc, which Petition was denied on November 3, 1980, 632 F.2d 894 (5th Cir. 1980) (Appendix B). Petitioners thereafter filed this timely Petition for B. Relevant Facts. On May 21, 1975, the date of plaintiff's alleged accident, defendant-petitioner, Highway Department, was the owner and operator of the GRAND LAKE FERRY, which vessel had been in use from May 9, 1975 through August, 1975, a temporary replacement fox a permanent bridge which was then undergoing repairs. On the said date, Crador was employed by the High- way Department in the capacity of Auto Mechanic II and assigned to the land-based shop of the Highway Department in Lake Charles, Louisiana. As an Auto Mechanic Il, Crador was charged with a wide range of duties, including repair and main- tenance of lawnmowers, road tractors, automobiles, trucks, heavy road equipment, permanent bridges and ferries. Although he ordinarily worked in the Highway Department shop, Crador was subject to be called out to perform road repairs on cars and heavy trucks. For this reason, he was provided with a state truck. Crador had been employed by the Highway Department for more than twenty years prior to the accident in question. He had served in the capacity of Auto Mechanic | or Il for more 7 than fifteen years. During the time he worked as an Auto Me- chanic II, Crador was called upon to perform certain sporadic and isolated repair work on the engines of various ferries oper- ated in the Lake Charles area by the Highway Department. Crador was one of several auto mechanics subject to call on the ferries as aforementioned. Out of a total 4,160 hours worked, during the two year period preceding the accident in question, Crador worked approximately 237.5 hours, which includes credit for travel time, or approximately 5.7% of his work time, on or with ferries. The remaining 94,3% of his work time was involved with his primary land-based activities. Crador did not eat or sleep aboard any vessel. He would drive home every night in his state truck and report to his shop for his assignment each morning. When he reported to work, Crador did not know exactly what work he would be doing on any particular day. He admits that he did not work as a deckhand or operator or engineer aboard any of the ferries. He did not tie or untie the ferry or assist in handling the automobiles. Contrary to the allegations in the Complaint and by his own admission, Crador was not assigned to any particular ferry, but was, in fact “just a road mechanic”. In fact, he refused a deck- hand and operator’s job. Crador did not perform any regular maintenance work aboard any vessels such as changing oil, fueling up, etc. Rather, these jobs were performed by full-time engineers assigned to larger ferries which engineers are given the title of Marine Engineer II. On the smaller ferries, such as the 8 GRAND LAKE FERRY, the maintenance work was performed by the crewmembers, namely, the operator and deckhand. The only time Crador was ever called out to work on a ferry was when the vessel would experience a major mechanical break- down. If there had been no major mechanical breakdowns a- board the ferries, Crador would never have boarded them. The facts in this regard are totally set out in the testimony of Crador. Said testimony clearly establishes Crador’s status as a land-based worked rather than a seaman. REASONS FOR GRANTING OF WRIT The questions raised in this case are of fundamental legal and constitutional proportions and are of such importance that this Court should hear arguments, and after due deliberation, grant petitioners the relief sought. ARGUMENT This litigation involves a lawsuit brought by Hurby Crador, an individual employed by the Department of Highways, State of Louisiana as an Auto Mechanic II. Crador was employed in a primarily land-based employment as had worked 94% of his em- ployment with the Department of Highways in activities on land. However, at the time of his accident and injuries, he was per- forming certain repair work to the transmission of a ferry owned and operated by the Department of Highways. This action was brought under the Jones Act and General Maritime Law in the United States District Court. Petitioners aver that the federal courts lack the jurisdiction over petition- 9 ers based upon the immunity afforded by the Eleventh Amend- ment of the United Stated Constitution. As suc‘., Crador’s sole remedy against the State of Louisiana and its insurer lies in the courts of the State of Louisiana and, more particularly, under the Louisiana Workmen’s Compensation Statute. Petitioners further aver that Crador was not a Jones Act seaman in fact or in law based upon his work history. As such, the federal courts lack subject matter jurisdiction over the sub- ject litigation. Petitioners respectfully move this honorable court to grant certiorari in the instant case and to reverse the prior decisions and judgements of the United States Fifth Circuit Court of Ap- peals and of the United States Dictrict Court for the Western District of Louisiana. QUESTION NOS. 1, 2 & 3 Immunity provided by the Eleventh Amendment of the United States Constitution: This suit is by an individual against the State of Louisiana over which the federal courts have jurisdiction only if the State of Louisiana had authorized such suit. Under the Eleventh Amendment of the United States Constitution, the federal judi- cial power docs not extend to any suit in law, equity or admiral- ty against a state by citizens of another state even in cases arising under the Constitution or Laws of the United States. In re State of New York, 256 U. S. 490, 41 S.Ct. 588 (1921); see also, Red Star Towing and Transportation-Co. v. Dept. of Transp. of N.J., 423 F.2d 104 (3rd Cir. 1970). 10 Although the Eleventh Amendment does not by its own terms bar a citizen from sueing his own state, a state cannot be sued without its consent in a federal court by one of its own cit- izens. Employees v. Department of Public Health and Welfare of Missouri, 411 U. S. 279, 93 S.Ct. 1614, 36 L.Ed. 2d 251 (1973). In Edelman v. Jordan, 415 U. 651, 94 S.Ct. 1347, L.Ed. 2d 662 (1974), this Court held that a suit by private parties seeking to impose liability which must be paid from public funds in the State Treasury is barred by the Eleventh Amend- ment. {he Court cited its opinion in Ford Motor Co. v. Depart- ment of Treasury, 343 U.S. 459, 65 S.Ct. 347 wherein the court stated: [W]hen the action is in essence one for the recov- ery of money from a state, the state is the real, substantial party in interest and is entitled to in- voke its sovereign immunity from suit even though individual officials are nominal defendants. Under the aforesaid “‘ real party in interest” rule, it is clear that the State of Louisiana, Department of Highways is entitled to Eleventh Amendment immunity since under Louisiana state law any judgment rendered would be payable our of funds appro- priated by the State Legislature. See, Judge Edward Boyle’s thorough opinion in Usry v. Louisiana Dept. of Highways, 459 F. Supp. 56 (E.D. La. 1978). The State of Louisiana has waived its sovereign immunity only to a certain degree. Article XII, Section 10, of the 1974 11 Constitution provides: Neither the State, a state agency, nor a political subdivision shall be immune from suit and liabil- ity in contract or for injury to person or proper- ty. However, the state has expressly provided the limitation that all suits against the State, state agencies, or political subdivisions shall not be instituted in federal courts. Seciton I of Act No. 434 of 1975, LSA-R.S. 13:5106 provides: No suit against the state, state agency or politi- cal subdivision shall be instituted in any court other than a Louisiana State Court. — LSA-R.S. 13:5102 provides in pertinent part: ‘State agency’ means any board, commission, department, agency, special district, authority or other entity of the state. Additionally, the State of Louisiana has expressly provided that no suits against the state, state agency or political subdivision can be tried by jury. LSA-R.S. 13:5105 (Appendix M). Petitioners do not contend that Crador is without remedy for the injuries he sustained. Rather, it is submitted that Crador can sue his employer and its insurer only in the State Courts of Louisiana without a jury. The Supreme Court has specifically held that consent to suit can be limited to state courts and not be applicable to act- ions in federal courts. Ford Motor Co. v. Department of Treas- ury, supra; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 12 64 S. Ct. 873, 88 L.Ed. 1121 (1944). Accordingly, without a waiver of immunity, the State of Louisiana, Department of Highways, (and its insurer) cannot be sued in federal courts. The immunity of the Department of Highways was upheld in the re- cent decision of the Fifth Circuit, Dagnall v. Gegenheimer, C.A. No. 79-1805 (5th Cir. 1980) (See Appendix H), rendered subse- qu ‘t to the Fifth Circuit’s denial of rehearing en banc in the instant case. The defense of immunity is not barred even where the state enters into congressionally created federal regulatory scheme. Employees v. Department of Public Health and Welfare of Missouri, 44 U.S. 279, 93 S.Ct. 1614, 36 L.Ed. 251 (1973). In the aforesaid case, the Eighth Circuit rejected the argument that the state had waived its sovereign immunity defense by operating hospitals subject to the provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Certiorair was granted and the United States Supreme Court, in an opinion by Justice Douglas, affirmed the Eighth Circuit decision: It is not easy to infer that Congress is legislat- ing pursuant to the Commerce Clause, which has grown to vast proportions in its applicat- ions, desired silently to deprive the States of an immunity they have long enjoyed under an- other part of the Constitution. Thus, we °°. 13 cannot conclude that Congress conditioned the operation of these facilities on the forfei- ture of immunity form suit in a federal forum. 411 U. S. at 285. The Fifth Circuit in recognizing the Supreme Court decision in Employees, has recognized that the entering of an area regulated by Federal Government does not in and of itself create a waiver of the state’s immunity. See, Intracoastal Transp., Inc., v. De- catur County, Georgia, 482 F.2d 361 (5th Cir. 1973) wherein the Court stated: 2 Apparently the crucial factor which must have weighed most heavily in the court’s rea- soning was the absence of any expressed in- tent by Congress to subject to the States to private suits. In face of the expressed limitat- ions on a federal court’s jurisdiction by the Eleventh Amendment, the court refused to expand the implied waiver theory or even entertain such a sensitive constitutional issue, without at least an expressed congressional provision which made a state amenable to suit . . It isnolonger sufficient merely to show that a State has entered a federally regulared sphere of activity and that a private cause of action is created for violating the applicable ——_ 7% 14 federal provision, but in addition the private litigant must show that Congress expressly provided that the private remedy is applic- able to the States. 482 F. 2d at 365 (emphasis added.) Petitioners would submit that Crador has not and cannot show in the present case that ‘“‘Congress expressly provided that the private remedy [of the Jones Act] is applicable to the States.” The sovereign immunity issue was not presented to the district court nor to the appeals court on the initial appeal. However, this Court has long recognized the importance of the immunity defense and permits such a defense to be raised for the first time on appeal - - even where urged for the first time be- fore the Supreme Court itself. Alabama v. Pugh, 438 U.S. 78, S. Ct. 3057, 56 L. Ed. 2d 1114 (1978); Ford Motor Co. v. Depart- ment of Treasury, supra; see also, Sosna v. Iowa, 419 U. S. 393, 95 S. Ct. 533, 42 L. Ed. 2d 532 (1975). In Edelman v. Jordan, supra, the Court stated: [I]t has well be settled. . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court. 415 U.S. at 677-78. QUESTION NOS. 4,5 & 6 Crador was not a Jones Act seaman and his sole remedy lies under the Louisiana Compensation Act: 15 As the record would reflect, Crador was employed as an Auto Mechanic II and more than 94% of his work involved pri- mary land-based activity. However, the district court permitted the status issue to go to the jury. Additionally, the district court withheld from the jury vital material evidence regarding Crador’s work history. It is submitted that the appeals court furthur erred in affirming the lowe. court on the issue of status which finding goes against the weight of the evidence presented at trial and is contrary to the prior consistent decisions of the Fifth Circuit. The lower court allowed the status question to go to the the jury, even though the facts were not disputed. Based upon the facts clearly before Judge Hunter, there was no evidentiary basis for this case to have been presented to a jury. Judge Politz wrote the opinion for the panel which participated in the initial hearing on appeal: The record reveals that Crador was assigned to do the work necessary ‘to keep[The GRAND LAKE FERRY] going’ his duties materially contributed to the Ferry’s mission. His as- signment, in the context made, was permanent. The only evidence that Crador was assigned to keep the ferry going was Crador’s own testimony. With all due respect, petitioners would submit that Judge Politz’s reliance upon that testimony is improper because the quoted testimony is erron- eously taken out of context. The testimony was not offered to show Crador was charged with on going maintenance of the i 16 vessel. Rather, his instructions were simply to perform the im- mediate repair work in such a fashion as to permit the ferry to re- main in operation during the course of the repairs: Q. Okay. Now, had anyone said that they wanted that ferry to keep going all the time? A. We had orders not to tie itup unless it was completely demolished. 1 mean, it couldn’t be run otherwise keep it rolling. (emphasis added) In other words, Crador was told “Don’t stop the ferry to fix it.” Permanent Assignment The facts of the present case are not unlike those present- ed in the case of Rotolo v. Halliburton Company, 317 F.2d 9 5th Cir. 1963). In Rotolo, the alleged seaman was a welder who was fatally injured in the course of his work aboard of his em- ployer’s vessels. The decedent was assigned from time to time to perform a single repair job on a single designated vessel. The Fifth Circuit, affirming the lower court’s denial of seaman’s stat- us stated: Here, Rotolo from time to time, was assigned to do and did a single repair job on a single designated boat. At no given time was he as- signed to repair two or more boats. Rather, each of his repair job assignments was always directed to asingle repair job on a single boat. 17 While he was assigned to repair different boats, he was not at any time charge with the duty of keeping two or more specific boats in repair. Nor was he ever charged with the duty of keeping a single boat in repair. . . In short, at no time was Rotolo permanently assigned to or connected with a specific boat, or two or more specified boats. And Rotolo did not do a substantial part of his work on a specified boat, or two or more specified boats. And the relation of the repairs which he per- formed on a boat, if any, to the functioning of the boat, or accomplishment of its mission, was extremely tenuous. It was substantially different from day-to-day maintenance of a particular boat or boats. (emphasis added) 317 F, 2d at 13. The Rotolo case is indistinguishable from the present ac- tion. Petitioners would submit that Crador, from time to time, did a single mechanical repair job on a single designated vessel belonging to the Highway Department. Each of Crador’s jobs was always directed to a single repair job on a single boat. At no time was Crador charged with the duty of keeping two or more specified boats in repair. Rather Crador’s connection with the GRAND LAKE FERRY and other Highway Department vessels resulted solely from his doing, from time to time, a single repair job on a single boat with no element of permanency. The 18 day-to-day maintenance of the ferry, according to Crador’s testimony, was performed solely by the operator and deck- hand, the crewmembers of the vessel. Crador performed solely mechanic work and never worked as an engineer, as such on any of the ferries. Mr. Crador admitted himself that he was not assigned to any particular boat but was “just a road mechanic.”’ Although the record would indicate that Crador did, at times, put in a number of hours working aboard the GRAND LAKE FERRY on a particular day, it is submitted that such isolated instances of substantial work aboard a vessel do not create seaman’s status under the Jones Act. Such was the hold- ing of the recent case of Fazio v. Lykes Bros. S. S. Co., Inc., 567 F. 2d 301 (5th Cir. 1978), in which the Fifth Circuit af- firmed the lower court decision of Judge Jack M. Gordon. Judge Gordon granted Summary Judgment in favor of the de- fendant on the issue of seaman status: The entire mode of operation on the shoregang crew establishes that their work aboard vessels, though at times substantial, was entirely trans- itory and depended on the particular need of Lykes Bros. assistance aboard ship on any given day. Accordingly, the Court finds as a mat- ter of law that plaintiff had no permanent con- nection of any type to any vessel or group of vessels and, therefore, cannot be afforded seaman status. (emphasis added) 567 F. 2d at 303. 19 Perhaps the best support for petitioners’ contention that Crador lacked permanent*assignment to any vessel is the com- ment of District Judge Edwin F. Hunter, Jr., who stated: “ , , there is no question about that. I mean, the Court under- stands that. He wasn’t a member of the crew of that vessel in the terms that he was permanently assigned to it.” Substantial Work It is further submitted by petitioners that Crador did not perform a “substantial part of his work on a vessel.” Although it is admitted that Crador did, on occasion, sporadically work on or near ferries in the Lakes Charles area, it is respectfully submitted that in the case at bar the eviden- tiary basis for the finding of Jones Act jurisdiction falls short. Again, Crador spent only 5.7% of his normal working hours on or near ferries in the Lake Charles area. He was not assigned to any particular ferry, and, according to his own testimony, he did not serve as a member of the crew. The appeals courts have in the past dealt with certain percentages in determining what is not considered substantial in the Robison analysis. For example, in the case of Keener v. Transworld Drilling Company, 468 F.2d (5th Cir. 1972), plaintiff was a platform worker who contended that he had spent three or four days scraping paint and painting in the engine room of the platform tender (vessel) and that this con- stituted a substantial part of his duties entitled him to Jones Act status. The court noted that the aforesaid four days 20 represented only 20 to 25% of the time Keener worked for the drilling company and denied seaman status. In Davis v. Hill Engineering, Inc., 549 F.2d 314, the Fifth Circuit specifically noted that 15% of workman’s duties aboard vessels does not comply with the substantiality test of Robison. Applying this standard to the present case, it is clear that Crador has likewise failed to meet the substantiality test. At the trial of this case, on thc issue of Jones Act status, Judge Veron refused to permit petitioners to question Crador or to introduce into evidence the work records of the Department of Highways for a period of two years prior to Crador’s alleged accident. Instead, Judge Veron would permit only testimony and those records relative to the dates that the GRAND LAKE FERRY was in operation, i.e., May 9, 1975 through the date of Crador’s accident on May 21, 1975 or a period of 12 days. Judge Veron’s refusal to permit testimony or the introduction of the prior work records severely prejudiced petitioners’ case and was made in contravention to the prevailing law. Despite Judge Veron’s restrictions to petitioners, Crador introduced testimony and documents of vessels other than the GRAND LAKE FERRY that he had worked on in the same 12 day period, as well as testimony and documents relative to his work aboard vessels prior to this 12 day period. Crador testi- fied as to the work he did on the BLACK BAYOU FERRY during this 12 day period; yet, that vessel had been in the area for at least back to May 19, 1973. Also, Crador introduced testimony about his work aboard all of the ferries; yet, he had worked aboard many of those ferries prior to this 12 day period 21 but not during this 12 day period. Crador opened the door to this testimony but it was closed to petitioners. The Fifth Circuit, affirmed the actions taken by Judge Veron in limiting the introduction of evidence of Crador’s work history with the Department of Highways: The Court permitted evidence of Crador’s work assignments during the time the GRAND LAKE FERRY was operational. This ruling is correct. One is not likely to be permanently assigned to a vessel, or even to spend a substantial amount of time on a vessel such as this ferry, unless it is in operation. The meaningful inquiry is the one permitted by the trial judge, ie., how ‘permanent’ was the assignment and how much time did Crador spend on the vessel after it was put into operation. Rather than focusing on the operational history of the vessel, the Court should have instead focused upon the employ- ment history of the individual for purposes of determining seaman status. At trial, there was no evidence presented to show when the GRAND LAKE FERRY became operational. ‘Rather, the evidence simply showed the date when the ferry was placed into service at the location in question - May 9, 1975. However, there was no showing of what work, if any, was performed by Crador while the said vessel was operational at the other locations. At this point, petitioners would point out that the ferry in question is not named the “GRAND LAKE FERRY” but rather is identified by the Highway Department as “305- 050”. Records presently available indicate the ferry has been in 22 service for the Highway Department at least since December, 1973 - 1 1/2 years prior to Crador’s accident. Judge Politz’s ‘meaningful inquiry” - how much time did Crador spend on the vessel after it was put into operation - could not have been pro- perly answered by the jury because the jury was not informed as to when the ferry was put into operation nor was the jury presented evidence as to how much time Crador spent on the vessel after it was put into operation. Petitioners would further contend that Judge Politz’s application of a “vessel operational history” test is both incon- sistent and in direct conflict with the prior rule adopted in the Fifth Circuit. The settled rule in the Fifth Circuit looks to the employment history of the individual with emphasis upon the nature of that individual’s duties taken as a whole. The Longmire decision is particularly appropriate: This case involves an additional com- plexity, however, in that Longmire was injured while actually working aboard the Tender. In Keener we specifically reserved the question whether a claimant’s work aboard a vessel, which would otherwise be insufficient to vest him with seaman status would be ‘sufficient to afford him seaman’s status during the period of his occupation with the tasks aboard the tender’ 468 F.2d at 731. We now answer that question in the negative. The issue of an injured worker’s status as a seaman should be addressed with reference to the nature and location of his occupation as awhole... 23 It can hardly be said the Longmire’s incidental activities aboard the tender - maintenance, moving supplies to and from the drilling platform, and stowing the anchor chain - were sufficient, when viewed in the context of his entire employ- ment as a member of the drilling crew, to amount to performance of ’a signi- ficant part of his work aboard thy. est with some degree of regularity and con- tinuity. 610 F.2d at 3147 (emphasis added). In Billings v. Chevron U. S. A., 618 F.2d 1108 (5th Cir. 1980), the court stated: If the nature of his occupation as a whole was that of a platform worker and not a crewmember, plaintiff is not entitled to avail himself of the liberal terms of the Jones Act. 618 F.2d at 110 (emphasis added). In line with the “employment as a whole” approach, the status cases have generally looked to an individual’s princi- pal employment duties and responsibuities rather than simply his immediate activity at the time of injury. See, e.g., Kirk v. Land and Marine Applicators, 555 F.2d 481 (5th Cir. 1977), Holland v. Allied Structural Steel Co., Inc. 539 F.2d 475 (5th Cir. 1976), and Brown v. ITT Rayonier, Inc., 496 F.2d 234 (5th Cir. 1974), (in these cases the court looked at plaintiffs’ “principal duties” in denying seaman status); Billings v. Chevron 24 U.S.A., supra, (the court examined plaintiff's “‘occupation as a whole” and “principal occupation” in denying seaman status); Longmire v. Sea Drilling Corp., supra, ( in addition to “‘occupa- tion taken as a whole” the court also looked at plaintiff's “primary responsibilities” in denying seaman status); Thibo- deaux v. J. Ray McDermott and Co., 276 F.2d 42 (5th Cir. 1960) (after examining plaintiffs ‘“‘customary duties’, seaman status was denied). A review of Crador’s employment as a whole clearly indicates his principal, primary and customary duties in the case at bar were those of a land-based mechanic. In the words of Crador himself, he was “just a road mechanic”. To effectively consider an individual’s ‘employment as a whole”, the courts have been called upon to review the term of an individual’s work history in balance with the work activity being performed at the time of the accident in question. In Keener v. Transworld Drilling Company, 468 F.2d 729 (5th Cir. 1972), the court denied seaman status after noting “these four days [working on vessel] represent approximately 20-25% of the time Keener worked for the drilling company”. 468 F.2d at 731. In Dugas v. Pelican Construction Company, Inc., 481 F.2d 773 (5th Cir. 1973) the court denied status after noting that plaintiff had been employed by defendant one week before his injury and spent only one day on a vessel. The court in Brown v. ITT Rayonier, Inc., supra, noted “(Well under 1% of [Brown’s] total time as un employee 25 had been spent on the water and in the boat”, 497 F.2d at 235, in its denial of seaman status. In Stokes v. B.T. Oilfield Services, Inc., 517 F.2d 1205 (Sth Cir. 1980), plaintiff worked for defendant one day at sea out of 28 workdays”. Based on this finding, seaman status was denied. See also, Higgenbotham v. Mobil Oil Corp., supra, where- in the court went back two years in reviewing plaintiff's work history and found plaintiff (Nation) to be a seaman despite a temporary assignment aboard a fixed platform at the time of his demise. Petitioners would emphatically direct the Court to its prior warning against the myopic focusing upon a small protion of an individual’s work record: [W]Jere we to treat appellee as a crewman during the three and one-half hour trip on the water, we would produce the irrational result that he was protected by workman’s compensation principles throughout his employment, say for a brief period one afternoon when he was subject to the entirely different principles of the Jones Act. We do not think that such differences in the character and circumstances of employee protection should be governed by something as unimportant as an employee’s precise location and duties at a given moment in the course of a single intergrated workin day under one employer. Brown v. ITT Rayonier, Inc., 497 at 239. 26 To bestow seaman status upon Crador under the rationale adopted herein by the Fifth Circuit will lead to the unmistak- able conclusion that anyone who performs a service which materially contributes to a vessel’s mission will automatically be deemed a seaman if those services are rendered, albeit on an isolated instance, during a time when a vessel is first placed into operation. Every engine repairman who services a vessel immediately after it is launched would be a “seaman” under this rationale. No circuit court has ever before taken such a position and petitioners would respectfully submit that it is improper for the courts to take that position in the case at bar. It is also submitted that petitioners were prejudiced by the lower court’s allowing Crador’s work history testimony as to all vessels, both during and prior to the 12 day period, yet, petitioners were denied the right to same. This is certainly contrary to the established jurisprudential principles set by the Courts. By the same token, one cannot claim Jones Act status based on a review of his entire work history and another claim Jones Act status based on a review of only a segment of his employment history. This would effectively end any consist- ency in the legal requirements for determining Jones Act status. The only just and fair analysis that can be made is one on review of a plaintiff's entire work history. 27 The application of the established principles and guide- lines long recognized by this court can lead to no other con- clusion than Crador was not a Jones Act seaman at the time of his accident. CONCLUSION Petitioners respectfully pray that this Honorable Court grant the Writ of Certiorari to review the Judgment of the Fifth Circuit Court of Appeals. Petitioners submit that the Department of Highways did not waive its immunity provided by the Eleventh Amend- ment of the United States Constitution. Accordingly, the judgments of the lower courts should be reversed and the case remanded to the district court with instructions that judg- ment be entered in favor of petitioners dismissing Crador’s suit on the basis of the Eleventh Amendment immunity. Alternatively, petitioners submit that the judgments of the lower courts sould be reversed and the case remanded to the district court with instructions that Crador is not a Jones Act seaman as a matter of law and that judgment be entered in favor of petitioners dismissing Crador’s suit. 28 In the further alternative, petitioners submit that the judgments of the lower courts should be reversed and the case remanded to the district court with instructions that the case be retried in order to permit the jury to review all of the rele- vant evidence with respect to Crador’s work history. HEBERT & ABBOTT Respectfully submitted, ANDRE’ J. MOULEDOUX MAURICE ¢. HEBERT, JR. 666 Poydras Street, Suite 500 New Orleans, Louisiana 70130 Telephone: (504) 568-9393 Attorneys of record for Louisiana Department of Highways, State of Louisiana and Houston General Insurance Co., Petitioners KentA RT RONALD R. THOMPSO 6161 Perkins Road Suite 2B Baton Rouge, Louisiana 70808 Attorney for Louisiana Department of Highways, State of Louisiana, Petitioner 29 PROOF OF SERVICE STATE OF LOUISIANA PARISH OF ORLEANS BEFORE ME, the undersigned authority, personally came and appeared: ANDRE’ J. MOULEDOUX who declared unto me, Notary, that he is one of the attorneys for Louisiana Department of Highways, State of Louisiana and Houston General Insurance Company, defendants-petitioners herein, and a member of the Bar of the Supreme Court of the United States, and hereby certified that on the _30th _ day of January , 1981, he served copies of the foregoing Petition for Certiorari on plaintiff-respondent through her attorney of record and on the Clerk of Court, United States Court of Appeals for the Fifth Circuit, by mailing copies in duly addressed envelopes, with first class postage prepaid, as follows: MR. BILLY H. EZELL 2010 Common Street Lake Charles, Louisiana 70601 CLERK OF COURT FIFTH CIRCUFF COURT OF APPEALS 600 Camp Street New Orleans, Louisiana 70130 Sworn to and subscribed Gow before me, this __30th day ANDRE’ J./MOULEDOUX of __ January , 1981 —_——— ---— -—- — NOTARY PUBLIC A-1 APPENDIX A Winnie Ola CRADOR as Executrix of the Estate of Hurby Crador, substituted in place and stead of Hurby Crador, de- ceased, Plaintiff-Appellee LOUISIANA DEPARTMENT OF HIGHWAYS, State of Louisiana, in personam, and Houston General Insurance Co. Defendants-Appellants. No. 78-1396. United State Court of Appeals, Fifth Circuit. Sept. 18, 1980. Employee mechanic, who sustained back injury while repairing transmission on employer’s vessel, sought damages for personal injury under Jones Act and General Maritime Law. The United States District Court for the Western District of Louisiana, Earl E. Veron, J., entered judgment on jury verdict for employee, and appeal was taken. The Court of Appeals, Politz, Circuit Judge, held that: (1) evidence was sufficient to | A-2 sustain jury finding that employee was a seaman at time of injury; (2) trial judge properly refused to allow evidence of employee’s work history during two years before accident; (3) jury’s findings on negligence and unseaworthiness were supported by evidence; (4) award of $250,000 damages was mot excessive; (5) there was no reversible error in jury instructions; and (6) rejection of various motions by employer was proper. Affirmed. 1. Seaman 29(5.16) Seaman status is a mixed question of law and fact. Jones Act, 46 U.S.C.A. §688; Longshoremen’s and Harbor Work- ers’ Compensation Act, $51(b), 33 U.S.C.AS 905 (b). 2. Seamen 29(5.14) Evidence that employee mechanic was assigned “‘per- manently” to employer’s vessel on which he was injured and that duties he performed contributed to accomplishment of vessel’s mission provided sufficient evidentiary basis for jury’s finding that employee was a “‘seaman”at time of injury. Jones Act, 46 U.S.C.A. 5688; Longshoremen’s and Harbor Workers’ Compensation Act, §5(b), 33 U.S.C.A. § 905 (b). 3. Seamen 29(5.13) In action for damages for personal injury under Jones Act A-3 and General Maritime Law brought by employee mechanic who sustained back injury while repairing transmission on employer’s vessel, trial judge properly refused to allow evidence of employee’s work history during two years before accident for purposes of determining seaman status. Jones Act, 46 U.S.C.A. § 688; Longshoremen’s and Harbor Workers’ Compen- sation Act, §5(b), 33 U.S.C.A. § 905(b). 4. Federal Courts 868 Appropriate standard for testing sufficiency of evidence in a Jones Act case is whether there is a reasonable evidentiary basis for jury verdict. Jones Act, 46 U.S.C.A. § 688. 5. Seamen 29 (5.14) In action for damages for personal injury under Jones Act and General Maritime Law brought by employee mechanic who sustained back injury while repairing transmission on employer’s vessel, evidence was sufficient to sustain jury’s findings on neg- ligence and unseaworthiness. Jones Act, 46 U.S.C.A. 9688; Longshoremen’s and Harbor Workers’ Compensation Act ,$5(b), 33 U.S.C.A.905 (b). 6. Federal Courts 871 Where jury finds particular quantum of damages and trial court refuses to upsct verdict, before an appellate court orders a remittitur or new trial, it must be certian indeed that award is contrary to all reason. 7s 7. Damages 32 In addition to loss of income, injury, in action under Jones Act and General Maritime Law brought by employee mechanic who sustained back injury while repairing transmission of employer’s vessel, was authorized to award damages for pain and suffering and impact on employee’s normal life routines. Jones Act, 46 U.S.C.A.8688; Longshoremen’s and Harbor Work- ers’ Compensation Act, $5(b), 33 U.S.C.A.5905(b). 8. Damages 130(3) Award of $250,000 damages to 48-year-old employee mechanic who was injured while repairing transmission on em- ployer’s vessel was not excessive. Jones Act, 46 U.S.C.A.688; Longshoremen’s and Harbor Workers’ Compensation Act §5(b), 33 U.S.C.A. § 905 (b). 9, Seaman 29(5.17) In action for damages for personal injury under Jones Act and General Maritime Law brought by employee mechanic who sustained back injury while repairing transmission on employer’s vessel, there was no reversible error in jury instructions. Jones Act, 46 U.S.C.A. $688;Longshoremen’s and Harbor Workers’ Compensation Act,$5(b), 33 U.S.C.As 905(b). 10. Federal Courts 847 Court of Appeals will reverse district court’s refusal of new trial only where there is an absolute absence of evidence to support verdict. A-5 Appeal from the United States District Court for the West- ern District of Louisiana. Before BROWN, GEWIN and POLITZ, Circuit Judges. POLITZ, Circuit Judge: Hurby Crador, an employee of the appellant Louisiana Department of Highways, sustained a back injury on May 21, 1975, while repairing the transmission on appellant’s vessel, the M/V GRAND LAKE FERRY. Crador sought damages for per- sonal injury under the Jones Act, 46 U.S.C.§ 688, and General Maritime Law, 33 U.S.C.$905(b). The district court denied ap- pellants’ motions for summary judgment and for directed verdict. The jury found Crador to be a seaman and returned a verdict for $250,000. The district court then denied appellants’ mot- ions for judgment notwithstanding the verdict, for new trial, for partial new trial and for remittitur. We affirm. Appellants assign multiple errors, challenging the finding that Crador was a seaman, the finding with respect to the GRAND LAKE FERRY’s seaworthiness, the finding of action- able negligence, certain of the jury charges, the refusal to admit evidence of Crador’s work history, the damages awarded, and the denial of appellants’ various motions. Crador was a méchanic. From July 1973 until June 1975, he repaired ferries, bridges, and vehicles owned by the Louisiana Department of Highways (LDH). The GRAND LAKE FERRY A-6 was temporarily used to transport vehicles across the Intercoastal Waterway while repairs were being made to a bridge. Between May 1, 1975 and May 21,1975, Crador spent 92 hours working on ferries, 77 of which were spent on the GRAND LAKE FERRY. Appellants contend that Crador was not entitled to sea- man status at the time of his injury. The record reveals that Crador was assigned to do the work necessary “to keep [the GRAND LAKE FERRY] going.” His duties materially contributed to the ferry’s mission. His assignment, in the context made, was permanent. The district court denied a motion for summary judgment on the status issue and correctly submitted that issue to the jury. In Ross v. Mobil Oil Corporation, 474 F. 2d 989 (5th Cir. 1973), we affirmed the test to be applied in resolving the jury question issue which we had articulated in Offshore Company v. Robison, 266 F. 2d 769,779 (Sth Cir. 1959), as follows: According to Robison there is a legally sufficient evidentiary basis for the case to go to the jury: (1) If there is evidence that the injured work- man was assigned permanently to a vessel (in- cluding special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) If the capacity in which he was employed or the duties which he performed contributed A-7 to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. 474 F.2d at 990. [1,2] Seaman status is a mixed question of law and fact. Holland v. Allied Structural Steel Co., 539 F. 2d 476 (5th Cir. 1976). In examining the record within the framework of the Robison guidelines we are compelled to the conclusion that there was evidence that Crador was assigned ‘‘permanently” to the vessel on which he was injured and the duties he performed contributed to the accomplishment of the vessel’s mission. Davis v. Hill Engineering, Inc., 549 F. 2d 314 (5th Cir. 1977). Finding an evidentiary basis for the jury’s verdict, our function as an appellate court is completed. This factual dispute may not now be revived and presented to us on appeal. Manchack v. S/S Overseas Progress, 524 F. 2d 918 (5th Cir. 1975). : [3] There is no merit in the challenge to the trial judge’s refusal to allow evidence of Crador’s work history during the two years before the accident. The court permitted evidence of Crador’s work assignments during the time the GRAND LAKE FERRY was operational. This ruling is correct. One is not like- ly to be permanently assigned to a vessel, or even to spend a A-8 substantial amount of time on a vessel such as this ferry, un- less it is in operation. The meaningful inquiry is the one per- mitted by the trial judge, ie. how “permanent” was the assign- ment and how much time did Crador spend on the vessel after it was put into operation. This evidence was presented to the jury and the jury’s conclusion foreclosed further review. Manchack,supra. [4,5] Appellants challenge the jury’s findings on negli- gence and unseaworthiness. The appropriate standard for test- ing the sufficiency of the evidence in a Jones Act case is whether there is a reasonable evidentiary basis for the in jury verdict. Campbell v. Seacoast Products, Inc., 581 F. 2d 98 (5th Cir. 1978). Applying that standard we find ample evi- dence in the record from which the’jury could find that the Department of Highways was negligent and its vessel was unsea- worthy. For example, there was testimony that Crador was re- quired to work in poorly lighted, awkward and confined quar - ter without adequate help and without suitable tools and equipment. Once again, upon finding this evidentiary basis our appellate function is exhausted. Manchack, supra. [6] Appellants next contend that the $250,000 dam- ages awarded was excessive. Where a jury finds a particular quantum. of damages and the trial court refuses to upset the verdict, before an appellate court orders a remittitur or a new trial, it must be “certain indeed that the award is contrary to all reason.”” Menard v. Penrod Drilling Co., 538 F.2d 1084, 1089 (5th Cir. 1976). The evidence reflects that Crador was 48 years old and had a work life expectancy of 14 years and a life A-9 expectancy of 22 years at the time of the accident. He suffered a severe disabling back injury. He has been unable to work since the accident. The evidence discloses that he is in a constant state of pain, a previously asymptomatic kidney condition was activated, and he must have the assistance ofhis wife to walk up and down stairs. His wife discontinued employment to stay home and take care of him. In addition to the disability, the record reflects substantial physical pain and mental anguish. [7,8] Crador offered the testimony of a consulting ac- tuary as an expert witness. The actuary testified that Crador had damages for loss of earningsof between $104,000 to $110,000, depending on what discount factor is used. In ad= dition to loss of income the jury could award damages for pain and suffering and impact on one’s normal life routines. Apply- ing the Menard litmus we are not prepared to say that it is “certain indeed that the award is contrary to all reason.” We decline to disturb it. [9] Appellants assign error to various of the jury instruc- tions. We have examined each claimed error. Considering the totality of the instructions as given, and recognizing that the form and structure of the jury charge is within the discretion of the trial court, Venzina v. Theriot Marine Service, Inc. 554 F.2d 654 (5th Cir. 1977), we find no reversible error. Appel- lant’s complaint which most nearly approximates a serious chal- lenge relates to the charge given that damages for impairment A100 | of earning capacity are to be measured on the basis of life ex- pectancy. The charge should more appropriately refer to work life expectancy. However, in this instance, considering that the evidence on the subject, related to work life expectancy, and view- ing the quantum of damages awarded, we are not persuaded that the jury was in any way confused or misled by the charge as given. Finally, appellants challenge the district court’s rejec- tion of their various motions. Their motion for summary judg- ment was properly denied. There was a valid, viable question as to whether Crador was a seaman. The motions for directed verdict and judgement n.o.v. were properly denied. In con- sidering those motions the court must consider the evidence in the light most favorable to Crador, and determine whether there is a reasonable evidentiary basis for the jury verdict. Campbell v. Seacoast Products, Inc., supra. [10] Appellants’ final motion was for a new trial. We will reverse the district court’s refusal of a new trial only when there is an absolute absence of evidence to support the verdict. Litherland v. Petrolane Offshore Const. Services, 546 F.2d 129 (5th Cir. 1977); Urti v. Transport Commercial Coproration, 479 F. 2d 766 (5th Cir. 1973). The verdict of the jury and the actions and decisions of the district court are AFFIRMED. All APPENDIX B United States Court of Appeals Fifth Circuit Tel. 504/589-6514 Gilbert F. Ganucheau 600 Camp Street Clerk New Orleans, La. 70130 Office of the Clerk November 3, 1980 TO ALL PARTIES LISTED BELOW: No. 78-1396 - Winnie Ola Crador, etc. -vs- Louisiana Department of Highways, etc. Dear Counsel : This is to advise that an order has this day been entered denying the petition ( ) for rehearing, and no member of the panel nor Judge in regular active service 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 10) the pe~ tition ( ) 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 By /S/ Claudia Nedes Deputy Clerk cc: Mr. Maurice C. Hebert, Jr. Mr. Ronald Thompson Mr. Billy H. Ezell A-12 APPENDIX C In The United States District Court For The Western District Of Louisiana Lake Charles Division HURBY CRADOR VS. CIVIL ACTION NO. 760542 LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL ( filed:11/17/77 ) KKK KKK KKK KEK KKK KKK KK KK KKK KOK K KK JUDGMENT Based upon the jury’s answers to the interrogatories, a copy of which is attached; IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Hurby Crador, and again- st the Louisiana Department of Highways and Houston General Insurance Company, in solido, in the amount of $250,000.00, together with legal interest thereon from this date until paid. SIGNED this 17th day of November, 1977, at Lake Charles, Louisiana. [S/ Earl E, Vernon Earl E. Vernon United States District Judge A-13 In The United States District Court For The Western District Of Louisiana Lake Charles Division : ) Civil Action No. 760542 (Giled: 11/17/77 KKK KKK KKK KKK KK KKK KKK KKK KKK KEK KE VERDICT OF THE JURY 1. Was the defendant negligent? 1S/ Yes 2. Was defendant’s vessel unseaworthy? /S/ Yes If your answers to questions 1 and 2 above are “No” then that ends the case and you not consider the other questions. But if your answers to questions 1 or 2 or both are“Yes” then you must answer the other questions. 3. What is the total amount of damages suffered by Mr. Crador? [S/ $250,000 4. Was the plaintiff contributorily negligent? [S/ No 5. If so, to what extent was plaintiff's negligence the cause of the accident? /S/ 0% /S/ Nov. 17, 1977 /S/ Roy J. Owens Date Foreperson A-14 APPENDIX D In the United States District Court For The Western District Of Louisiana Lake Charles Division HURBY CRADOR VS. CIVIL ACTION NO. 760542 LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL (filed: 11/30/77) RK K KKK KKK KKK KK KK KK KK KOK OK KOK KK OK OK OK OK * AMENDED JUDGMENT This matter was tried by jury on the question of the status of the plaintiff and after the jury found the plaintiff was a sea- man, it was tried on liability and damages and the jury found for the plaintiff on liability and damages, copies of which are attached hereto. On November 17, 1977, the day of the jury’s verdict of liability and damages, a judgment was signed against the defend- ants in solido for the full amount rendered by the jury. It was an error on the part of the court in signing the judgment in solido for the entire sum as defendant, Houston General Insurance Company’s liability was linited to the policy limits of $100,000.00, less all compensation and medical expen- ses paid to or on behalf of plaintiff. For the foregoing reasons, the judgment signed on Novem- ber 17, 1977 , is hereby amended to read as follows: IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff be and he is hereby declared a seaman in accordance with the jury’s answer to the interrogatory. A-15 IT IS FURTHER ORDERED, ADJUDGED AND DE- CREED that there be judgment in favor of plaintiff, Hurby Crador, in the full sum of $250,000.00, together with legal inter- est from November 17, 1977, until paid and against the defend- ants in solido up to the sum of $86,737.74 and against the Louisiana Department of Highways only for the additional sum of $163, 262.26. SIGNED at Lake Charles, Louisiana on the 28th day of November, 1977. /S/ Earl E. Vernon Earl E. Vernon United States District Judge A-16 APPENDIX E United States District Court Western District Of Louisiana Lake Charles Division * HURBY CRADOR * CIVIL ACTION _ VERSUS * NO. 760-542 LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL KKK KKK KKK KEK KK KK ORDER FOR STAY OF JUDGMENT The Court having considered the motion of Louisiana Department of Highways (now designated as Department of Transportation and Development, Office of Highways) and Houston General Insurance Company for stay of the judgment rendered against them on Novmeber 30, 1977, for the reasons therein; IT IS HEREBY ORDERED that the judgment in this matter rendered by the Court and entered by the Clerk on November 30, 1977 in favor of the plaintiff and against Louisi- ana Department of Highways (now designated as Department of Transportation and Development, Office of Highways) and Houston General Insurance Company be, and it is hereby stayed; IT IS FURTHER ORDERED that the execution of the judgment not be issued out of this proceeding until further Order of the Court. Lake Charles, Louisiana, this 24th day of February, 1978. {S/ Earl E. Vernon United States District Judge A-17 APPENDIX F In the United States District Court For The Western District Of Louisiana Lake Charles Division CIVIL ACTION NO. 760542 HURBY CRADOR VS. LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL FOR PLAINTIFF Messrs. Billy H. Ezell 3020 Common Street Lake Charles, Louisiana 70601 FOR DEFENDANTS _ Joseph T. Dalrymple P. O. Box 222 Alexandria, Louisiana 71301 Maurice C. Hebert, Jr. Suite 1616, One Shell Square New Orleans, Louisiana 70139 Ronald R. Thompson . P. O. Box 44245, Capitol Station Baton Rouge, Louisiana 70804 HUNTER, SENIOR JUDGE: Defendants, the Louisiana State Department of Highways and Houston General Insurance Company, have moved this i A-18 Court to dismiss and/or grant a summary judgment against the claim of plaintiff on the grounds that plaintiff lacks status as a Jones Act seaman. Defendants argue that the facts in this case establish that plaintiffs connection with the ferries was transi- tory and fortuitous and merely incidental to his job as a mechanic. The determination whether a chi mant has proved a sufficient connection with water-borne or vessel-related activities to invoke jurisdiction as a seaman under the Jones Act is a mixed question of law and fact. Offshore Company v. Robison, 266 F.2d at 780. The facts of this case are unique. No useful purpose would be served by reviewing those facts at this time. The motions to dismiss and/or for summary judgment are denied. We intimate no view, one way or the other, of whether or not in the final analysis the Court might direct a verdict on the question of status. It really does not matter too much in the final analysis whether Crador is a seaman or not. This is so because under the rule of Smith v. M/V Captian Fred, 546,F.2d 119 (5th Cir. 1977), a repairman aboard a vessel may sue the vessel on which he was injured for both its negligence and unseaworthiness when as here the owner of the vessel is also the employer. We hold that Crador has a cause of action against the Department of Highways if he was injured as a result of the ferry’s negligence and/or unseaworthiness. We note that the two other circuit courts of appeals have reached the same conclusion. Napoli v. Helenic Lines, Ltd., 536 F.2d 505 (2nd Cir. 1976); Griffith v. A-19 Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3rd Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct.785, 46 L.Ed. 2d 643 (1976). Defendants have twenty (20) days to further answer, and the case will be set for trial in the immediate future. THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, on this the 10th day of May, 1977. /S/ Edwin F. Hunter, Jr. Edwin F. Hunter, Jr. Senior United States District Judge A-20 APPENDIX G IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION HURBY CRADOR VS. CIVIL ACTION NO. 760542 LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL MEMORANDUM RULING Defendants, Louisiana State Department of Highways and Houston General Insurance Company, take issue with the Court’s ruling of May 10, 1977, particularly the Court’s reli- ance that “the Jones Act involves a mixed question of law and fact.”” The Court agrees that the ultimate material facts regard- ing Crador’s status are not in serious dispute. However, this does not necessarily mean that the Court should grant a motion for summary judgment. Under the particular total circumsiances of this case, and particularly because Crador would have a cause of action against the Highway Department if the ferry was negligent or if there was unseaworthiness, we deny the motion for a re- hearing. We reiterate that as to the Jones Act facet of this A-21 case, we might well grant a directed verdict at an appropriate time. The motion for a re-hearing is denied. THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, on this the 20th day of May, 1977. /S/ EDWIN F. HUNTER, JR. EDWIN F. HUNTER, JR. UNITED STATES DISTRICT SENIOR JUDGE A-22 APPENDIX H David DAGNALL, Plaintiff-Appellee, v. Succession of Bamey GEGENHEIMER et al., Defendants, Department of Highways, State of Louisiana, Defendant-Appellant. No. 79-1805. United States Court of Appeals, Fifth Circuit. Dec. 3, 1980. Personal injury suit was brought against the Louisiana Department of Highways. The United States District Court for the Eastern District of Louisiana, at New Orleans, Adrian G. Duplantier, J., 466 F.Supp.245, denied the Department’s motion for judgment notwithstanding verdict, based on the Eleventh Amendment, and the Department appealed. The Court of Appeals, Charles Clark, Circuit Judge, held that: (1) suit brought by Wisconsin resident was barred by the Eleventh Amendment; (2) attorney for the Department had no authority to waive the Eleventh Amendment right of the A-23 state not to be sued in federal court; and (3) state was not precluded from asserting its immunity after it had sought favorable verdict and lost before the jury. Judgment vacated and appeal dismissed. 1. Federal Courts 269 Eleventh Amendment barred suit of Wisconsin resident against Louisiana Department of Highways for alleged negli- gence in installing highway median barriers which did not meet prevailing industry standards. U.S.C.A.-Const. Amend. 11. 2. Federal Courts 622 Eleventh Amendment rights of a state are sufficiently jurisdictional to be asserted for the first time on appeal. U.S. C.A.Const. Amend. 11. 3. Federal Courts 266 Attorney for the Louisiana Department of Highways had no authority to waive Eleventh Amendment right of the state not to be sued by resident of another state in federal court. U.S.C.A.Const. Amend. 11; LSA-R.S. 13-5106. 4. Federal Courts 266 State was not precluded from asserting its Eleventh Amendment immunity after it had sought favorable verdict and lost before the jury. U.S.C.A.Const. Amend. 11. Appeal from the United States District Court for the Eastern District of Louisiana. A-24 Before CHARLES CLARK, TJOFLAT and GARZA, Circuit Judges. CHARLES CLARK, Circuit Judge: The Louisiana Department of Highways (the Depart- ment) appeals from a judgment rendered against it in this negligence action. The eleventh amendment, the Supreme Court’s interpretations thereof, and the law of the State of Louisiana require the vacation of this judgment and dismissal of the appeal. David Dagnall and two co-workers were going to work on the Pontchartrain Expressway in New Orleans at four o’clock a.m. on July 4, 1975, when a vehicle driven by Gegen- heimer in the opposite direction went out of control, crossed the concrete median after straddling it for 185 feet, and struck Dagnall’s vehicle head-on. Gegenheimer was killed and Dagnall received extensive injuries. Dagnall, a resident of Wisconsin, brought this diversity action against Gegenheimer’s estate, which settled out of court, and the Department. At trial, Dagnall’s evidence showed that the barriers used in the medians on the expressway did not meet the prevailing industry stan- dards and that if the barriers had met those standards, he would not have been injured. After the jury returned a verdict award- ing Dagnall $100,000.00, the Department filed a motion for a new trial combined with a motion for judgment notwithstand- ing the verdict, arguing for the first time that the trial court | A-25 lacked jurisdiction over the action under the eleventh amend- ment. The trial court held that the Department had waived its eleventh amendment immunity by its pretrial stipulation that it was amenable to suit and by failing to raise the jurisdictional issue until after trial. Before this court, the Department argues that the eleventh amendment deprives the trial court of juris- diction, and that there was insufficient evidence to support the jury’s verdict. Because the former issue is dispositive, we do not discuss the latter. [1,2] The eleventh amendment expressly bars the suit of Dagnall, a resident of Wisconsin, against the State of Loui- siana. Dagnall does not dispute the Department’s claim that it is a state agency entitled to invoke eleventh amendment limita- tion on the judicial power of the United States. It is clear that . the eleventh amendment rights of a state are sufficiently juris dictional to be asserted for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed. 2d 662, 681 (1974). So then, unless the State has waived its eleventh amendment immunity, the district court was without jurisdiction. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed.389 (1945), the Court addressed the question whether the administrative and execu- tive officers of Indiana had the authority to waive that State’s eleventh amendment immunity. Id. at 466, 65 S.Ct. at 352, 89 L.Ed. at 395. Noting that the question was one of state law, but that the state courts had not ruled on the question, A-26 the Court concluded from the Indiana Constitution that the attorney general had no authority to waive the State’s immu- nity. Edelman’s holding that the trial of that case did not bar the State from raising its immunity at the appellate level did not address the question of waiver nor did it distinguish the Ford Motor decision, see footnote 19, 415 U.S. at 677, 94 S.Ct. at 1363, 39 L.Ed.2d at 681. [3] Louisiana law makes clear that no attorney for the State could have the authority to waive its eleventh amendment immunity. ELSA:RS 13:5106 provides: “No suit against the state or other public body shall be instituted in any court other than a Louisiana state court.” It has been held that this section deprives counsel of authority to consent to suit in federal court. AT&T v. Madison Parish Police Jury, 465 F.Supp. 168 (W.D.La. 1977). By the very nature of this question, no state court would rule on it unless by certification. In view of this specific statute, the general Louisiana llaw regarding a state attorney’s authority to prosecute or defend a suit is without significance. The attorney for the Department had no authority to waive the eleventh amendment right of the State of Louisiana not to be sued by Dagnall in a federal court. [4] The State has asserted its immunity only after it sought a favorable verdict and lost before the jury. Had it prevailed, Louisiana would doubtless be claiming the case was tried with its consent. That today’s decision might permit such A-27 an inequity cannot overcome Louisiana’s plain constitutional right and clear statutory provision. Because the State of Louisiana is immune from suit in federal court by a citizen of another state, and because Loui- siana has not waived this eleventh amendment immunity, the trial court was without jurisdiction and so are we. The judg- ment appealed from is vacated: and the appeal is dismissed. _ VACATED AND DISMISSED. A-28 APPENDIX I IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION HURBY CRADOR VS. CIVIL ACTION NO. 760542 LOUISIANA DEPARTMENT OF HIGHWAYS, ET AL EXCERPT FROM TRIAL PROCEEDINGS, NOVEMBER 14, 1977 (PP 49-57 of TRIAL TRANSCRIPT) PROCEEDINGS IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY. THE COURT: All right. Do you want to go ahead and make your offering and I will maintain the objection and let the other side make the objection and then you can make your offer of proof. All right. Let the record reflect the jury is not present at this time. Let’s see, Gentlemen. So that we can get the court record in proper order, you were in the process, Mr. Hebert, of going into some material relating back for a period of two years concerning the plaintiff's employment. And at that time we had an objection at the Bench as to allow- ing you to go that far back in going into the question of wheth- _ er the plaintiff is a seaman or not. Am I correct? A-29 MR. HEBERT: I think basically that is correct, Your Honor. THE COURT: All right. Now. for the record then, Mr. Exell, would you state your objection on the record so that we can proceed? MR. EZELL: Our objection is directed to the relevancy of the materials as they date back for two years, or a two year period, in reference to Mr. Crador’s employment with the Highway Department and his connection with the vessel or ves- sels within this district. So we are objecting to the introducing of the evidence as to his work period prior to the on-ventof the ferry here, the Grand Lake Ferry. THE COURT: All right. I will maintain the objection. And, Gentlemen, for the record, I will maintain it right now while the jury is out so that you may make an offer of proof, Mr. Hebert. But when we bring the jury back in, I want him to make the objection again in the presence of the jury and I will make the ruling in the presence of the jury so that the record will be complete. Is that agreeable, sir? MR. HEBERT: Yes, sir. Fine. THE COURT: All right. MR. HEBERT: Okay, Your Honor, the offer of proof on behalf of the defendant encompasses this. I have submitted, as the record would show, to Mr. Crador all of the work re- cords, the daily work reports, State of Louisiana, Department of Highways, for a period of time dating from May the 16th, A-30 1973 through May the 21st, 1975, which is the date of the alleged accident. I had also submitted, in fairness to Mr. Crador and counsel who has already submitted the same daily work reports for the period of time, from May 21st, 1975 through the date of June, July the 17th, 1975. Okay. And it is my understanding that the Court will sustain the objection to any testimony or admissibility of records prior to the date of May the 9th, 1975, Mr. Crador’s first day aboard the vessel. THE COURT: No, that is incorrect. I said, and I want this for the record to be absolutely clear, that the parties stipulated for the benefit of the jury that this vessel was located at Grand Lake for at least a period from May 9th, 1975 through August, 1975. MR. HEBERT: Right. That is correct, Judge. THE COURT: And my ruling is that the evidence as to whether he is a seaman is to be restricted to the entire period of time that the ferry was there, meaning if it was prior to May 9th, you can offer any evidence as long as it is for the period of time in which the ferry was located at the Grand Lake location. MR. HEBERT: Okay. I understand. That’s fine. And I would introduce all of those work records, Your Honor, for the period of time that I just mentioned, 5-16-73 through 7-17-75 as Defendant One. THE COURT: Why don’t you make it Defendant One, offer of proof. A-31 MR. HEBERT: That’s fine. THE COURT: As opposed to Defendant One in case you have some other exhibits. MR. HEBERT: That will be fine. THE COURT: That will be Defendant Number One, offer of proof. Let the offering be received for the offer of proof. (Whereupon said work records, (marked D-1-offer of proof, for (identification was received into (evidence and filed with the Clerk (of Court. MR. HEBERT: Thank you, Judge. THE COURT: Do you have anything further, Mr. Hebert? MR. HEBERT: Yes, sir, I do. If it please the Court, the records that I have just submitted to the Court encompasses the marine activities of Mr. Crador from the date of 5-16-73 through 7-17-75. He has already testified that the designation Lake Ferry. 34031 and 348033 are engines aboard the Grand Lake Ferry. We have made a compilation of the Defendant One records, Your Honor, to include this date, the equipment number, the miles driven to the job site, the hours including travel, we have taken that and made some other compilations shown on it, on the compilation as to what we considered irrelevant, such as percentage of time and otherwise. The A-32 irrelevant, such as percentage of time and otherwise. The only thing that isn’t in the record at this time is the designation 305028 which I understand is another barge that operates somewhat as a ferry. May we have a stipulation to that effect? MR. TYNES: Concerning the compilations? MR. HEBERT: That that is what that designation stands for. MR. TYNES: We will stipulate the designation is correct as stated. MR. HEBERT: Okay, Judge. And we would offer that. MR. TYNES: But we would like to see the offering, - the physical page there, to see how you have got it written down. MR. HEBERT: Well, I gave Billy a copy. MR. TYNES: Oh, I’m sorry. MR. HEBERT: I might add for the record, which the Court would notice on the compilation, is overtime. THE COURT: Well, I don’t need to see it since it is an offer of proof. MR. HEBERT: Okay. MR. TYNES: Your Honor, for the purposes of the offer of proof and to avoid any need of calling a witness, we will stipulate as to the total hours worked and dates and desig- nations but we won’t stipulate as to the number of hours that constituted travel hours because they are figured on the basis of fifty-five miles an hour. And it is just a question of arith- metic but there are some assumptions there that may alter the A-33 hours traveled considerably, such as speed and the difference between forty and fifty-five. MR. HEBERT: No, I understand that. That is correct. The compilation that we will introduce, Your Honor, is a synopsis or resume of all of the records that we have just intro- duced in Defendant Number One, offer of proof. I understand what counsel says and certainly that’s correct. THE COURT: All right. MR. HEBERT: So I would offer that as Defendant Two, offer of proof. THE COURT: Any objection other than the qualifica- tion as to Defendant Two, offer of proof? MR. TYNES: No, Your Honor. THE COURT: Let the offering be received. (Whereupon said compilation marked (Defendant Two, offer of proof, (for identification was received (into evidence and filed with the (Clerk of Court. THE COURT: All right. What is next, Gentlemen? MR. HEBERT: I could either put Mr. Bass on the stand to testify that he has researched all of those vessels and those are all of the vessel related activities of Mr. Crador for the period of time indicated on the records, if counsel would require that. - A-34 THE COURT: Well, check with them and see if they will stipulate. If hey will stipulate, then you won’t have to do it, sir. (Whereupon an off the record (discussion was had between (counsel. MR. EZELL: | don’t have any objection. We would stipulate. THE COURT: All right. State the stipulation before the microphone, please, Mr. Hebert. MR. HEBERT: The stipulation is that if Mr. Bass were called to testify, but counsel has already stipulated that the records introduced as Defendant One and the compilation introduced as Defendant Two accurately reflect all of the vessel related activities of Mr. Crador for the veriod of time from 5-16-73 through 7-17-75. THE COURT: Is that stipulation agreeable, Gentlemen? MR. EZELL: Yes, Your Honor, that’s correct. THE COURT: All right. Let the stipulation be made a part of the offer of proof. Anything further with your offer of proof? MR. HEBERT: Okay. Your Honor, there is only one thing I would like to put on the record, if I might, what I told the Court earlier today, this afternoon in our meeting during the recess prior to this time. This is the position that we have A-35 maintained throughout the lawsuit involved for the two year period. THE COURT: All right. MR. HEBERT: Shall I go into this? THE COURT: Well, go ahead and say what you want to. You are making an argument to the Court and I will listen to you, Mr. Hebert. MR. HEBERT: Okay. It’s just our position, Your Honor, that from the Jones Act point of view to determine temporary assignments versus overall duties to determine a man’s position as a seaman with regard to continuity and regularity that we think that something more than just a period of time that this one particular point of the vessel being there should be determined and that was our reasoning. And I just think the record ought to reflect our position as to why we think that this information is relevant. THE COURT: All right. Let his remarks be put onthe | record. I have no comment to make. MR. HEBERT: Okay. No, I think I am required to do that, Your Honor. THE COURT: All right. Anything else on the offer of proof? MR. HEBERT: I guess that is about it, Judge. THE COURT: Could we have the jury brought in? A-36 APPENDIX J 46 U.S.C. § 688. Recovery for injury to or death of seaman Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of death of any sea- man as a result of any such personal injury the personal repre- sentative of such seaman 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 conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdication in such actions shall be under the court of the dis- trict in which the defendant employer resides or in which his principal office is located. A-37 APPENDIX K 28 U.S.C. §1254. Courts of appeals, certiorari, appeal, certi- fied questions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; A-38 APPENDIX L Louisiana Constitution Article XII §10. Suits Against the State Section 10. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property. (B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political sub- division. A measure authorizing suit shall waive immunity from suit and liability. (C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a po- litical subdivision. It shall provide for the effect of a judgment, but wo public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered. A-39 APPENDIX M Louisiana Acts 1975, No. 424 §1 LSA-R.S. 13:5101. Application This Part applies to any suit in contract or for injury to person or property against the state, a state agency, or a politi- cal subdivision of the state, as defined herein, and also applies to any other suit expressly authorized by special or general law or resolution adopted by the legislature. LSA-R.S..13:5102. Definitions A. As used in this Part, ‘‘state agency” means any board, commission, department, agency, special district, authority, or other entity of the state, but does not include any political subdivision or any agency of a political subdivision. B. As the term is used in this Part, ‘‘political subdivision” means any parish, municipality, special district, school board, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency. LSA-R.S. 13:5105. Jury trial prohibited No suit against the state or a state agency or political subdivision shall be tried by jury. LSA-R.S. 13:5106. Limitation No suit against the state, state agency, or political sub- division shall be instituted in any court other than a Louisiana state court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1259%3A1. Public record. Not legal advice.