Record and brief — Griffin v. Oceanic Contractors, Inc.

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8 ] ™ 6 1 a ALEXANDE? L. STEVAS,

Supreme Court of the United States

OcTOBER TERM, 1981

NO.

DANNY L. GRIFFIN,

Petitioner

Vv.

OCEANIC CONTRACTORS, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BENTON MUSSLEWHITE

3506 Travis

Houston, Texas 77002

713/520-0621

Attorney for Petitioner

OOOO

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

Supreme Court af the United States

OcToBER TERM, 1981

NO.

DANNY L. GRIFFIN,

Petitioner

OCEANIC CONTRACTORS, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Danny L. Griffin, prays that a writ of

certiorari to review the opinion and judgment of the

United States Court of Appeals, Fifth Circuit, rendered

in these proceedings on June 17, 1981 be granted.

QUESTIONS PRESENTED FOR REVIEW

Whether the Fifth Circuit Court of Appeals’ holding

that the duration of time for which penalty wages are

awarded seamen under 46 U.S.C. § 596 is left to the

equitable discretion of the trial court is erroneous inas-

much as the Third and Ninth Circuits have previously

held that the trial court is mandatorily bound to assess

penalty wages for the exact time period called for by

46 U.S.C. § 596.

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE DISTRICT COURT AND

CIRCUIT COURT

Petitioner, Danny L. Griffin

Oceanic Contractors, Inc., Respondent

SUBJECT INDEX

QUESTIONS PRESENTED FOR REVIEW ..........

LIST OF ALL PARTIES TOG THE PROCEEDING IN

THE DISTRICT COURT AND CIRCUIT COURT

OE TOME cecccedscsccccvcccccvessesvcesese

REFERENCE TO OFFICIAL AND UNOFFICIAL RE-

PORTS OF OPINIONS DELIVERED BY COURTS

| | MPPTTTTTTTITTTLIL LTT TEEPE reer Tree

GROUNDS ON WHICH THE JURISDICTION OF THIS

CREE GD UCD ee scccccccccccosceseeseces

WEG Civecsvcecccoscccceeccccccccccoescesesees

A. Course of Proceedings Below .................-+.

B. Basis For Federal Jurisdiction In the District Court ..

ARGUMENT AND REASONS FOR ISSUANCE OF

WEEE secvcdeccscsccscvceocccccececctsocescensoce

I. THE COURT OF APPEALS’ HOLDING THAT

THE APPLICATION OF THE PENALTY WAGE

PERIOD SET FORTH IN 46 U.S.C. § 596 IS DIS-

CRETIONARY WITH THE DISTRICT COURT

HAS FAR REACHING CONSEQUENCES AF-

FECTING VIRTUALLY EVERY AMERICAN

SEAMAN AND BECAUSE SUCH HOLDING DI-

RECTLY CONTRADICTS RECENT DECISIONS

OF THE THIRD AND NINTH CIRCUITS AND

SO FAR DEPARTS FROM THE EXPLICIT

PROVISION OF THE STATUTE, THE EXER-

CISE OF THIS COURT’S POWER OF REVIEW

IS BOTH NECESSARY AND PROPER ........

II. ANY POWER IN THE COURTS TO EXERCISE

DISCRETION IN THE AWARD OF PENALTIES

SUCCESSFULLY DEFEATS THE MANIFEST

AND UNDISPUTED INTENT OF CONGRESS

TO BOTH PUNISH SHIPOWNERS AND OTH-

ERS WHO WRONGFULLY WITHHOLD EARN-

ED WAGES FROM SEAMEN AND TO PRO-

TECT SEAMEN FROM THE HARSH CONSE-

QUENCIES OF ARBITRARY AND UNSCRUPU-

LOUS ACTIONS OF THEIR EMPLOYERS .....

an NY &

III. REGARDLESS OF THE SEVERITY OF A PEN-

ALTY RESULTING FROM THE MANDATORY

APPLICATION OF 46 U.S.C. § 596, THE STAT-

UTE MUST BE ENFORCED AS WRITTEN BY

CONGRESS AND SHOULD NOT BE MODIFIED

BY THE COURTS THROUGH THE INTRO-

DUCTION OF EQUITABLE CONSIDERATIONS

CONCLUSION AND PRAYER ...........-0eeeeeeees

CERTIFICATE OF SERVICE ............cceceeeeees

APPENDIX I — District Court Opinion ...............

APPENDIX II — District Court’s Findings of Fact and

er ree

APPENDIX III — Judgment of Fifth Circuit and Opinion

etanercept ppiapipe razed goes

APPENDIX IV—46 US.C. $596 ........ccceeeeeees

LIST OF AUTHORITIES

CASES

Alier v. Sea Land Service, Inc., 465 F.Supp. 1106 at p. 1110

American Foreign Steamship Co. v. Matise, 423 U.S. 150

43 HY 8 hf 8 Perr

v. U.S. Bulk Carriers, Inc., 408 F.2d 1065 (4th

Se ee Gee Was BOE CEUUED cc cccecescossosesenes

Buckley v. Oceanic S.S. Co., 5 F.2d 545 (9th Cir. 1925)

Caribbean Federation Lines v. Dahl, 315 F.2d 370, 374 (Sth

Cir.) cert. den., 375 U.S. 831 (1963) ..........eeeees

Escobar v. S.S. Washington Trader, 509 F.2d 271, 274 (9th

Cir. 1974), vacated and remanded on other grounds, 423

Wk SE CED coccncnsiceseccecerdsoceesouleses

Forster v. Oro Navigation Co., 228 F.2d 319 (2nd Cir.

1955), aff’g. 128 F. Supp. 113 (S.D. N.Y. 1954) .....

Isbrandtsen Co. v. Johnson, 343 U.S. 779 and 783 (1952)

— v. Hudson Waterways Corp., 640 F.2d 997 (9th

| GEE ep cecependanvbscodeocescoescedeciecunnes

Mavromatis v. United Greek Shipowners Corp., 179 F.2d

ae Gh DE caténodbansersséeseecsvecddeass

Petterson v. United States, 274 F. 1000 (D.C. N.Y. 1921)

, CASES Page

Southern Cross S.S. Co. v. Firipis, 285 F.2d 651 (4th Cir.

1960), cert. denied 365 U.S. 869 (1961) ............. 7

Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3rd Cir.

ence ya ier gia ae pa ae a 6, 10, 13, 14

Thomas v. S. S. Santa Mercedes, 572 F.2d 1331, 1334-5

SE luk ccvalicnaleny ogecdeactotees sous 6,9

Ventiadis v. C. J. Thibodeaux & Co., 295 F. Supp. 135, 138

a i a 4,7

UNITED STATES STATUTES

GS DBL. 8906 .ccccccccce 2, 3,4, 6, 7, 8, 10, 11, 12, 13, 14, 15, A-27

i Ti hs cid cwwehéeed ro ccceeeeset boudecseces 3

DE cccddevednecesecoccnseoeenseeéesce 2

Supreme Court of the United States

OcTOBER TzRM, 1981

NO.

DANNY L. GRIFFIN,

Petitioner

Vv.

OCEANIC CONTRACTORS, INC.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REFERENCE TO OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS DELIVERED

BY COURTS BELOW

1. The opinion of the District Court was delivered

the 7th day of May, 1980, Cause No. S-78-26-CA in the

United States District Court for the Eastern District of

Texas, Sherman Division (unreported). The judgment

of the District Court is attached hereto as Appendix I.

2. The judgment and opinion of the United States

Court of Appeals for the Fifth Circuit, dated the 17th

day of June, 1981 is unreported and appears under

Decisions Without Published Opinions at 650 F.2d 281;

Civil Action No. 80-1599, United States Court of Appeals

for the Fifth Circuit. The judgment and opinion of the

United States Court of Appeals, Fifth Circuit, are at-

tached hereto as Appendix III.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

The judgment of the Court of Appeals was entered

on June 17, 1981. No petition for rehearing and rehearing

en banc was thereafter filed. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTES AND RULES WHICH

THIS CASE INVOLVES

1. This case involves an interpretation and construction

of federal statute, 46 U.S.C. § 596 and the application

and award of the penalty provisions contained therein.

The statute is reprinted as Appendix IV to this petition.

STATEMENT OF THE CASE

A. Course of Proceedings Below

Petitioner filed suit on February 1, 1978 and by his

original complaint, alleged that between February and

April, 1976 the Petitioner, while working as a seaman

aboard a vessel owned and operated by the Respondent,

sustained serious and disabling injuries outside the terri-

torial waters of the United States, as a result of the neg-

ligence of the Respondent under the Jones Act, 46 U.S.C.

§ 688 and the unseaworthiness of the vessel. The Peti-

tioner asserted a cause of action under the Jones Act, the

General Maritime Law and 46 U.S.C. §°596, providing

for recovery of double wages for wrongfv' withholding

of wages by a discharged seaman’s employer. The Re-

spondent answered in response to Petitioner’s original

complaint, asserting the defenses of Petitioner’s negligence,

unavoidable accident and intervening cause.

Thereafter, trial was conducted before the Court sitting

without a jury. After hearing all the evidence and argu-

ments presented by counsel, the Court filed its Findings

of Facts and Conclusions of Law (attached as Appendix

IL) and its Judgment on May 7, 1980, generally favorable

to Petitioner.

The Trial Court awarded Petitioner penalty wages

under 46 U.S.C. § 596 from April 1, 1976, the date of

Petitioner’s discharge by Respondent until May 5, 1976,

a period of 34 days (Conclusion of Law No. 11). The

Court awarded Petitioner a total of $6,881.60 as the

penalty. It is undisputed that Petitioner Griffin was

not paid all of his earned wages after his discharge

(District Court’s Conclusions of Law No. 10, Ap-

pendix II) and that Respondent’s failure to pay Peti-

tioner’s earned wages was a wrongful withholding without

sufficient cause in violation of 46 U.S.C. § 596. (District

Court’s Conclusions of Law No. 11.) Petitioner was not

in fact paid his wrongfully withheld earned wages by

Respondent until September, 1980, some 53 months after

his discharge from Respondent’s employ. Satisfaction of

-Judgment was filed by Respondent on September 22,

1980 acquitting the Respondent with respect to the final

judgment entered on May 7, 1980.

Petitioner’s appeal to the United States Court of Ap-

peals, Fifth Circuit addressed two main issues: (1) the

refusal of the Trial Court to award Petitioner full wages

(straight time, overtime and bonuses) for the entire period

of Petitioner’s contractual employment and (2) the failure

of the Trial Court to award Petitioner the full statutory

penalty manadated by 46 U.S.C. § 596 of double-daily

wages for each day earned wages were withheld by Re-

spondent until the time of actual payment by the Re-

spondent in September, 1980.

The Court of Appeals agreed with the District Court’s

holdings on both of these issues. Regarding the penalty

wage issue, the Court of Appeals held that the duration

on applying the penalty wage statute is left to the sound

discretion of the District Court.’

However, in its opinion at Footnote 4, the Couri of

Appeals noted the clear conflict between the Circuits

concerning the proper application of the penalty time

period. Petitioner respectfully urges that 46 U.S.C. § 596

establishes a mandatory time period for its application,

i.e. from date of discharge until date of actual payment.

This literal interpretation of the statute has heretofore

been diluted by those circuits, namely the First, Second,

Fourth and Fifth which allow judicial tailoring of the

statute by the sound discretion of the Trial Court. Such

1. Caribbean Federation Lines v. Dahl, 315 F.2d 370, 374 (Sth

Cir.) cert. den., 375 U.S. 831 (1963); Ventiadis v. C. J. Thibodeaux

& Co., 295 F. Supp. 135, 138 (D.C. Tex. 1968).

an interpretation dilutes the purpose and effect of the

Statute, that being to protect seamen from the harsh con-

sequences of arbitrary and unscrupulous actions of their

employers.*? The Cov:'s adopting the majority discretion-

ary view have so far departed from the clear and concise

command of the statute regarding the penalty time period

that they have virtually rewritten the statute. Such modi-

fication of a federal remedial statute, passed by the Con-

gress has no judicial precedent. Admiralty courts must

enforce this statute according to its express provisions,

and not question the results mandated by their applica-

tion. Such power in the Courts, in effect, transforms those

judicial bodies into a super-legislature. Petitioner requests

the Honorable Court to uphold the literal interpretation of

this statute and to restore the protective vitality and im-

pact of a remedial plan which the federal legislative

body intended to put in effect for the good of the wards

of admiralty.

B. Basis For Federal Jurisdiction In The District

Court

The jurisdiction of the District Court was sought by

Petitioners under the Jones Act and the General Maritime

Law of the United States.

2. American F Steamship Co. v. Matise, 423 U.S. 150

(1975), reh. den. 424 U.S. 979.

ARGUMENT AND REASONS FOR

ISSUANCE OF WRIT

THE COURT OF APPEALS’ HOLDING THAT THE

APPLICATION OF THE PENALTY WAGE PERIOD

SET FORTH IN 46 U.S.C. § 596 IS DISCRETIONARY

WITH THE DISTRICT COURT HAS FAR REACH-

ING CONSEQUENCES AFFECTING VIRTUALLY

EVERY AMERICAN SEAMAN AND BECAUSE SUCH

HOLDING DIRECTLY CONTRADICTS RECENT DE-

CISIONS OF THE THIRD AND NINTH CIRCUITS

AND SO FAR DEPARTS FROM THE EXPLICIT

PROVISION OF THE STATUTE, THE EXERCISE

OF THIS COURT’S POWER OF REVIEW IS BOTH

NECESSARY AND PROPER.

The Court of Appeals holding that the duration on

applying the wage penalty statute® is left to the sound

discretion of the district court, directly conflicts with

recent decisions* of the Third and Ninth Circuits, which

view § 596 as establishing a mandatory time period for

its application. Two lines of authority have developed

regarding the applicable period for which the statutory

penalty is to be assessed. The Third Circuit in Swain

held that judicial discretion does not exist to tailor the

statutory penalty for wrongful withholding from a sea-

man’s wages to the equities of a particular case. That

Court held that once the statute is found to apply, the

3. 46 U.S.C. § 596.

4. Swain v. Isthmian Lines, Inc., 360 F.2d 81 (3rd Cir. 1966);

Larkins v. Hudson Waterways Corp., 640 F.2d 997 (9th Cir. 1981);

Thomas v. S.S. Santa Mercedes, 572 F.2d 1331 (9th Cir. 1978).

penalty must be imposed from the date the seaman’s

wages were originally due him until the date the seaman’s

wages are actually paid.° The Ninth Circuit interpreted

the same statutory language to be “unequivocal and

mandatory”, reasoning that the abandonment of a seaman

in a foreign port without wages was exactly what prompt-

ed Congressional enactment of 46 U.S.C. § 596.

The second line of authority, to which the Fifth Circuit

adheres, interprets the penalty time period to rest solely

in the discretion of the court, subject to the equities of

each individual case.* This Honorable Court recently

noted the Fifth Circuit view in American Foreign S.S.

Co. v. Matise’ and that the discretionary time period ap-

plication has been endorsed by the First,* Second’ and

Fourth”® Circuits.

In light of the present conflict between the Circuits

and the unequal remedies available to seamen, resulting

from the several interpretations of the penalty wage

statute and depending upon the particular geographic

arena possessing jurisdiction over the litigation, we urge

5. Accord, Escobar v. S. S. Washington Trader, 509 F.2d 271,

274 (9th Cir. 1974), vacated and remanded on other grounds, 423

U.S. 1070 (1976).

6. Note 1, supra, at p. 4; Ventiadis v. C. J. Thibodeaux & Co.,

295 F. Supp. 135, 138 (D.C. Tex. 1968).

7. Note 2, supra, at p. 4.

8. Mavromatis v. United Greek Shipowners Corp., 179 F.2d 310

(1st Cir. 1950).

9. Forster v. Oro Navigation Co., 228 F.2d 319 (2nd Cir. 1955),

aff’g. 128 F. Supp. 113 (S.D. N.Y. 1954).

10. Southern Cross S.S. Co. v. Firipis, 285 F.2d 651 (4th Cir.

1960), cert. denied 365 U.S. 869 (1961).

the Honorable Court to exercise its power of review and

resolve the conflict over this issue in the interests of

uniformity of remedies available to injured seamen and

in the interests of uniformity of maritime law, in this

case under federal statute. It is perfectly reasonable for

the Court to afford equal statutory protections to all

seamen faced with the peril of penniless abandonment at

the time vf discharge, regardless of the geographic forum

for the resulting litigation. We would further urge the

Court to hold that 46 U.S.C. § 596 must be read as a

mandatory command to the judiciary so that henceforth

uniformity of seamen’s remedies and judicial administra-

tion of those remedies will prevail. Unequal remedies

available to seamen arising out of the same federal statute

will continue if this Court does not resolve this question.

The Courts adopting the majority discretionary view

have so far departed from the clear and concise command

of the statute regarding the penalty time period that they

have virtually rewritten the statute. Such modification of

a federal remedial statute, passed by the Congress, has

no judicial precedent. Admiralty courts must enforce this

statute according to its express provisions, and not ques-

tion the results mandated by their application. Any power

in the Courts, to question federal legislation, in effect,

transforms those judicial bodies into a super-legislature.

Il.

ANY POWER IN THE COURTS TO EXERCISE

DISCRETION IN THE AWARD OF PENALTIES

SUCCESSFULLY DEFEATS THE MANIFEST AND

UNDISPUTED INTENT OF CONGRESS TO BOTH

PUNISH SHIPOWNERS AND OTHERS WHO

WRONGFULLY WITHHOLD EARNED WAGES

FROM SEAMEN AND TO PROTECT SEAMEN

FROM THE HARSH CONSEQUENCES OF ARBI-

TRARY AND UNSCRUPULOUS ACTIONS OF

THEIR EMPLOYERS.

The purpose of section 596 is to give the seaman

funds on which to live when he is left ashore. [Cita-

tion] Regardless of whether he is discharged for

cause [or properly set ashore] the seaman needs the

protection afforded by section 596 when his right

to food and quarters on the vessel is terminated.

Thomas v. S. S. Santa Mercedes, 572 F.2d 1331,

1334-5 (9th Cir. 1978).

Quoting from Alier v. Sea Land Service, Inc., 465 F.Supp.

1106 at p. 1110,

“The Statute can be considered as one which awards

double wages in the nature of compensation or which

awards compensation in the nature of a penalty... .

Notwithstanding, in Buckley v. Oceanic S.S. Co.,

5 F.2d 545 (9th Cir. 1925) the holding was that

the statute was a penalty intended as compensation

to seamen rather than punishment of the master. . . .

This Court is in agreement with the proposition that

the essential spirit and purpose of the statute is to

financially punish the vessel, its owner and/or its

master, as the case may be, for the neglectful failure

to pay wages. . . . It is regarded as penalty within

the maritime industry. Petterson vy. United States,

274 F. 1000 (D.C. N.Y. 1921).”

This penalty feature of the statute is precisely what Con-

gress had in mind to motivate shipowners to exercise care

in computing wages due a seaman. Thus, the statute as

written by Congress, who failed to give the Courts dis-

cretionary power to tailor the penalty awarded to the

equities of the particular case, is designed to be an ef-

fective deterrent to unjust enrichment by shipowners and

to the penniless abandonment of seamen in foreign ports.

The statute must be strictly construed by the Courts to

give effect to the Congressional intent that penalty wages

penalize the shipowner and thereby protect the wards of

admiralty.

The United States Supreme Court in American Foreign

Steamship Company v. Matise,"’ refused to address the

issue before this Honorable Court of whether or not the

trial court can exercise any discretion in determining the

amount of the award under Section 596. The Court noted

at p. 412 that the Third and Ninth Circuits have found

that the trial judge has no discretion in determining the

amount of the penalty under Section 596 citing Swain

v. Isthmian Lines, Inc.,'* and Escobar v. S.S. Washington

Trader.** In light of the punitive and remedial intent of

Congress in formulating 46 U.S.C. § 596, Petitioner as-

serts that this is the better rule of law and should be

applied to the facts of the controversy before the Court.

The granting of discretion to the District Court to limit

the award of penalty wages to a wronged seaman is in

direct contradiction of and dilutes the effectiveness of

the statute to deter wrongful conduct and protect the

rights of seamen.

11. Supra, at Note 2, p. 4.

12. Supra, at Note 4, p. 5.

13. Supra, at Note 5, p. 6.

Congress never intended the Courts to apply equitable

considerations and factors in mitigation of the statutory

penalty, once the provisions of Section 596 are found

to apply. To do so will completely destroy assessment of

any penalty at all. There is ample room for equitable

considerations in determining whether or not sufficient

cause exists to withhold the seaman’s wages. Once the

Court makes the determination of lack of sufficient cause

and finds a wrongful withholding of wages by a Defend-

ant, the Courts should not reevaluate the amount of the

penalty assessed by the same equitable considerations.

Once a Defendant has been held in violation of Section

596, the penalty must be assessed strictly in accordance

with the statute. Any other judicial interpretation allows

the Court to effectively rewrite the statute and depart

from the historic judicial function of effectuating the spirit

and purpose of the law.

That law, particularly Congressional legislation in aid

of seamen, is largely remedial and historically calls for

liberal interpretation in favor of the seaman as the ward

of admiralty.’* It has been said that

“Historically, the right to prompt payment of a sea-

man’s wages has been especially favored by admiralty

law. The Courts strongly disapprove denial of prompt

payment of seaman’s wages rightfully due him, and

wage statutes are always to be liberally construed

in favor of the seaman.”*®

Any interpretation of this federal statute must be made

in light of the rules of statutory construction set forth in

14. Isbrandtsen Co. v. Johnson, 343 U.S. 779 (1952).

15. Arguelles v. U.S. Bulk Carriers, Inc., 408 F.2d 1065 (4th

Cir.) aff’d 400 U.S. 351 (1971).

Isbrandtsen wherein it was stated that the Courts should

give a “natural meaning to legislation like this that ob-

viously is of a remedial, beneficial and amendatory char-

acter. It should be interpreted so as to effect its purpose.”

343 U.S. at p. 783. (Emphasis added.)

The maritime law throughout its history has made the

ordinary seaman a member of a favored class—a ward

of the admiralty. Congress has through its legislation

shown its awareness of the need to protect seamen’s rights

so that now, such legislation touches almost every facet

of a seaman’s life. 46 U.S.C. § 596 is a product of this

Congressional awareness of seamen’s rights. The statute

deals explicitly with those who fail to pay seamen wages

which they have earned. Such a statute must be construed

liberally in favor of the seaman in keeping with the spirit

of such legislation and the need for uniform rules in

the computation of seaman’s penalty wages.

The majority discretionary rule has utterly failed to

effectuate the purpose of 46 U.S.C. § 596, that pur-

pose being to encourage the prompt payment of a

seaman’s wages. Petitioner presents a persuasive case in

point. Petitioner was entitled to receive his earned wages

on April 1, 1976, the date he was discharged in Antwerp,

Belgium. Petitioner was not in fact paid his wrongfully

withheld wages by Respondent until September, 1980,

over 4 years from the date they were due. Logical men

could not say that such action by Respondent was prompt

or equitable. However such action clearly demonstrates

that the majority discretionary rule does not encourage

or compel shipowners/employers such as Respondent to

recognize their responsibilities to seamen, neither does

the discretionary rule put into effect the purpose of 46

U.S.C. § 596 as required by Isbrandtsen.

iil.

REGARDLESS OF THE SEVERITY OF A PEN-

ALTY RESULTING FROM THE MANDATORY AP-

PLICATION OF 46 U.S.C. §596, THE STATUTE

MUST BE ENFORCED AS WRITTEN BY CON-

GRESS AND SHOULD NOT BE REWRITTEN BY

THE COURTS THROUGH THE INTRODUCTION

OF EQUITABLE CONSIDERATIONS.

There are simply no equities existing in favor of a

shipowner who abandons a scaman in violation of 46

U.S.C. § 596 and none should be applied in mitigation

of the statutory penalty. Such a judicial interpretation

so totally departs from the course of Congressional intent

that the exercise of this Court’s power of review is called

for. Such an interpretation effectively pardons the callous

and sometimes cruel actions of the shipowner/employer

after the fact so that the seaman is, in reality, protected

by words alone and the shipowner/employer is virtually

free to commit the same wrong again and again, free from

fear of substantial penalty.

This exact problem was faced and resolved by the

Third Circuit Court of Appeals in the Swain case supra:

When considerations fail to establish the existence

of sufficient cause for the deduction under section

596, those same equitable considerations may not

be reevaluated when the assessment of the penalty

is considered. . . . After all, if sufficient cause for

the deduction is found to be lacking, the shipowner

or his agent has either been overtly culpable in re-

ducing a seaman’s wages, or significantly inattentive

in his duties vis-a-vis the seaman’s wage rights. As

we view it, it is precisely the possibility that large

penalties will accrue that should motivate a ship-

owner to exercise care in computing wages due a

seaman. We think that this deterrent was what Con-

gress had in mind in providing for a penalty in the

form of inflexible liquidated damages. In conclusion,

as was aptly stated in the dissenting court of ap-

peals opinion in Pacific Mail, upon considering the

penalty provision of section 596: ... as to the

severity of the penalty, there is, of course, no thought

of suggesting that a court can properly decline to

enforce a statute merely because it may seem to be

unnecessarily harsh. Once Congress has decided that

a penalty is proper such as that provided under 46

U.S.C. § 596, the statute must be read as a manda-

tory command to the judiciary.

360 F.2d at 87.

The interpretation of 46 U.S.C. § 596, calling for

judicial discretion and the application of equitable con-

siderations in favor of shipowners/employers who have

done no equity and deserve none under the statutory

scheme enacted by Congress, clearly demonstrates that

the exercise of this Court's power of supervision is des-

perately needed in the interest of justice.

CONCLUSION AND PRAYER

In summary, the issue presented before this Court by

Petitioner, regarding the application of the penalty wage

statute, 46 U.S.C. § 596, is ripe for review, not only

because of the conflicts between the circuits and the far

reaching consequences affecting the rights and remedies

available to virtually every American seaman but also

because the majority discretionary rule violates Con-

gress’ intent to penalize and punish those whose actions

violate the statute and, in effect, rewrites the statute.

By its provisions, 46 U.S.C. § 596 only punishes conduct

which is inequitable. It is, therefore, not only unjust but

unthinkable that any Court would apply equitable factors

in favor of the malfeasor, in this case the shipowner/em-

ployer of Petitioner Danny L. Griffin. Such an application

not only violates all traditional principles of equity but

also undermines the remedial nature of the statute and

the protection of American seamen as the wards of

admiralty.

Every case involving the rights of discharged seamen

to their earned wages wrongfully withheld will be af-

fected by the Court’s decision in this case. Petitioner

respectfully moves the Court to grant Writ of Certiorari

in order to resolve the very important questions related

above and the conflicts between the decisions of the

Court of Appeals in this case and the decisions of other

circuit courts; and, upon proper briefing and hearing

upon the merits, Petitioner requests this Court to reverse

this cause on the issue now presented and render Judg-

ment for Petitioner or, alternatively, remand the same

to the District Court for the Eastern District of

Texas for redetermination of the amount of penalty wages

due the Petitioner.

Respectfully submitted,

BENTON MUSSLEWHITE

3506 Travis

Houston, Texas 77002

713/520-0621

Attorney for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I mailed this day three (3) true

and correct copies of the foregoing Petition for Writ of

Certiorari to each of the following attorneys, being the

only other attorneys of record:

Mr. Theodore Goller

Fulbright & Jaworski

800 Bank of the Southwest Building

Houston, Texas 77002

on this _____ day of September, 1981.

BENTON MUSSLEWHITE

A-1

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS ©

SHERMAN DIVISION

NO. S-78-26-CA

DANNY L. GRIFFIN

Vv.

« OCEANIC CONTRACTORS, INC.

“"~ae = JUDGMENT

Based upon the findings of fact and conclusions of

law this day entered in the above-entitled and numbered

civil action, it is

ORDERED, ADJUDGED, and DECREED that plain-

tiff, Danny L. Griffin, shall be, and he is hereby, awarded

judgment against the defendant, Oceanic Contractors,

Inc., in the following amounts:

(1) $5,913.68, as recovery for maintenance and cure,

earned and unearned wages, repatriation expense and the

value of lost personal effects;

(2) $2,506.89, as prejudgment interest on the re-

covery for maintenance and cure, earned and unearned

wages, repatriation expense, and the value of lost personal

effects;

(3) $3,368.23, as attorney's fees for the recovery for

maintenance and cure, earned and unearned wages, re-

patriation expense and prejudgment interest; and

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(4) $11,881.60, as recovery for pain and suffering

and penalty wages.

It is further

ORERED, ADJUDGED, and DECREED that the

total amount of this judgment, including attorney’s fees,

i.e., $23,670.40, shall bear interest at the rate of nine

percentum (9%) per annum from this date until paid,

and that defendant pay all costs of court.

SIGNED and ENTERED this 6th day of May, 1980.

/s/ WM. WAYNE JUSTICE

Chief Judge

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APPENDIX II

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIVIL ACTION NO. S-78-26

DANNY L. GRIFFIN

OCEANIC CONTRACTORS, INC.

FINDINGS OF FACT

1. This civil action is brought by Danny Laried Griffin,

as a seaman, against Oceanic Contractors, Inc. At all

times material to this action, plaintiff was, and is now, a

resident of the State of Texas, and defendant, Oceanic

Contractors, Inc., was the owner and operator of “Lay

Barge 27”.

2. At all relevant times, plaintiff was a seaman, and

the “Lay Barge 27” was a vessel in navigation. The “Lay

Barge 27” is a special purpose vessel, designed and out-

fitted for the assembly and installation of marine pipe-

lines.

3. On February 18, 1976, plaintiff signed an employ-

ment contract with defendant in New Orleans, whereby

he agreed to work as a pipeline welder on board defend-

ant’s vessels operating in the North Sea. The employment

contract specified that plaintiff's employment was to begin

on the date plaintiff departed the United States and ex-

tend “until December 15, 1976, or until Oceanic’s 1976

p peline committal in the North Sea is fulfilled, whichever

shall occur first.” The employment contract also provided

that, for his work as a pipeline welder, plaintiff would

receive a base pay rate of $9.65 per hour and an expatria-

tion premium of $720.00 per month; that for his work as

a structural welder, plaintiff would be paid $6.65 per

hour and an expatriation premium of $495.00 per month.

4. On the same day the employment contract was

signed, plaintiff reported to a physician, selected and paid

by defendant, in New Orleans, Louisiana, for a physical

examination. Plaintiff had had several minor episodes of

hemorrhoids in the year preceding the examination. Plain-

tiff answered all questions asked by defendant’s physician

at the time of the physical examination. Defendant's

physician did not ask plaintiff if he, plaintiff, had ever

suffered from hemorrhoids; however, the doctor did ex-

amine plaintiff's rectum. The physical examination form

states, directly above the space for plaintiff's signature:

“I understand this is a limited examination and does not

eliminate all possibilities of physical impairment or

disease.” In light of this provision, a reasonable interpre-

tation of the physical examination form is, that defend-

ant’s physician was only interested in information speci-

fically requested. Plaintiff did not intentionally misre-

sent or conceal any material medical facts.

5. On March 7, 1976, defendant provided plaintiff

with air transportation to Antwerp, Belgium. Upon

arrival, plaintiff reported to the “Lay Barge 27”, which

was berthed in the harbor of Antwerp.

6. On the “Lay Barge 27”, each welder was normally

assigned a welder’s helper, whose only task was to assist

that welder in the performance of his duties. At the time

of the accident made the basis of plaintiff's claims, “Lay

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Barge 27” was so shorthanded that only one welder’s

helper was available for the ten to twelve welders assigned

to each work shift.

7. The North Sea is a hostile and inclement body of

water during the winter months. In order that “Lay Barge

27” would be ready to put to sea as early in the year as

possible, defendant followed the practice of having barge

crews on board approximately one month ahead of time,

to repair damages from the previous year and to perform

rigging and maintenance operations necessary to ready

the barge for seagoing service. It was contemplated by

defendant that, as soon as the barge was made ready by

its crew and the North Sea was calmed, “Lay Barge 27”

would put to sea and begin its pipe laying season.

8. Oxygen is essential to the welding process. It is

usually supplied to welders in tubular metal tanks, called

“oxygen bottles”, weighing about 125 to 150 pounds.

When a welder changes the location of his work, it is

necessary to move the oxygen bottle he is using to the

new site. It is also necessary to move oxygen bottles, in

order to replace an empty one with a full one. Moving

an oxygen bottle is a task ordinarily and normally as-

signed to a welder’s helper. It is a difficult assignment,

for the oxygen bottles have a smooth surface not con-

ducive to lifting or moving. If an unobstructed passage

is present, a bottle is commonly shifted by rolling it

across the deck of the vessel; otherwise, it must be lifted

across obstacles.

9. “Lay Barge 27” was shorthanded on and before

April 1, 1976, as above set out, in that there were an

insufficient numbers of welders’ helpers available to

assist the welders assigned to the vessel. On that day,

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plaintiff was engaged in repair and maintenance on the

deck of the “Lay Barge 27”, which was much cluttered

by pipes, machinery and other obstructions. When it

became necessary for plaintiff to move an oxygen bottle,

no welder’s helper was at hand, and he, himself, at-

tempted to lift and move the oxygen bottle. In perform-

ing this task, plaintiff so strained himself that he sustained

traumatic thrombosed hemorrhoids, a painful and dis-

abling injury.

10. The failure of defendant to maintain an adequately

staffed vessel was a breach of its nondelegable duty to

maintain a seaworthy vessel, for it is essential that a con-

struction vessel such as the “Lay Barge 27” have on board

at all times a crew that is qualified, both in skills and

in numbers, to do the job at hand. “Lay Barge 27” was

unseaworthy at the time of plaintiff's injury, in a manner

that caused plaintiffs injury.

11. Plaintiff exercised his duties as a seaman properly

on the occasion in question, and he was not guilty of

contributory negligence.

12. April 1, 1976, was the last day plaintiff was

aboard “Lay Barge 27” for the purpose of working.

13. The plaintiff left the barge on April 1, 1976, and

sought medical attention from Dr. J. Stuyck, a physician

in Antwerp, Belgium, to whom plaintiff was referred by

a medic in defendant’s employ. He was treated conserva-

tively with local anesthetics and other prescriptions. He

continued to have difficulty with his hemorrhoids, and on

April 2, 1976, he was admitted to the Ziekenhuis Vesalius

Hospital in Antwerp. An emergency hemorrhoidectomy

was performed on plaintiff at the hospital on the evening

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of April 3, 1976. Plaintiff remained in the hospital until

shortly before noon on April 5, 1976. Before and after

the operation, plaintiff suffered severe physical pain and

mental agony.

14. From the hospital, plaintiff went by a taxi directly

to defendant’s office in Antwerp, where he met and spoke

with Jesse Williams, a welding superintendent. Williams

was the supervisor for all of the welder foremen and pipe-

line welders who worked for defendant in the North

Sea and was permanently stationed at the shore-based

Antwerp office.

15. When plaintiff presented himself at defendant’s

office, he had with him and presented a “not fit for duty”

slip given to him by the physician who had discharged

him from the hospital. William refused to acknowledge

that plaintiff's injury aboard the “Lay Barge 27” was

work related, denied that defendant was liable for plain-

tiff’s medical and hospital expenses, maintenance or un-

earned wages, and declined to furnish plaintiff transporta-

tion from Antwerp, Belgium, to his home in Houston,

Texas. Such conduct of Williams, which was in the course

and scope of his employment, constituted arbitrary, un-

reasonable, callous and willful disregard for plaintiff's

rights by defendant.

16. Plaintiff was discharged from “Lay Barge 27” and

from defendant’s employ as of April 1, 1976. At the time

of his discharge, plaintiff was incapacitated to work by

reason of the injuries he received on board the “Lay

Barge 27” on that date. Although plaintiff appeared and

demanded his wages from the defendant after the date

of his discharge, defendant failed to pay plaintiff his

earned wages, unearned wages, maintenance and cure,

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repatriation expense, and the value of his lost personal

effects, as above mentioned.

17. Plaintiff left Antwerp, Belgium, on April 5, 1976,

and arrived in Houston, Texas, on April 6, 1976. He was

examined by Ernest Max, M.D., a colon and rectal sur-

geon, in Houston, Texas, on April 6, 14, and 28, 1976.

On April 28, 1976, Dr. Max signed a written statement

that plaintiff could resume work on May 3, 1976. Plain-

tiff was fit for duty on May 3, 1976; the parties have so

stipulated. He had reached maximum medical recovery

by that time.

18. Plaintiff was disabled for a period beginning April

1, 1976, and ending May 3, 1976. Plaintiff is due main-

tenance for thirty-two days. Tiie parties have stipulated

to a rate of $15.00 per day as maintenance. Such stipu-

lation is reasonable and the rate is appropriate. The

parties have also stipulated that plaintiff paid $200.00

as medical expenses in Antwerp and Houston. Defendant

has paid for all other medical expenses of plaintiff from

this injury.

19. Plaintiff's employment agreement with defendant

provided that defendant would deduct $137.50 from each

of the employee’s first four pay checks to provide trans-

portation funds to plaintiff's home, should the employee

voluntarily terminate his employment prior to satisfactory

completion. Defendant deducted and retained three pay-

ments of $137.50 each, a total of $412.50, from the three

bi-weekly checks received by the plaintiff during March

and April of 1976. When plaintiff left Antwerp, Belgium,

for Houston, Texas, he was not given the money for re-

patriation expense which had been deducted and retained

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by the defendant, but, instead, was required to pay his

own expenses home.

20. Defendant retained $412.50 earned wages due to

plaintiff, in addition to refusing to reimburse plaintiff for

his out-of-pocket expenses incurred in returning home.

Although he has repeatedly demanded to be reimbursed

for his return expenses incurred, his demand has been

ignored by defendant. Defendant’s failure to pay plain-

tiff the $412.50 in earned wages was without sufficient

cause.

21. Plaintiff has exercised due diligence to attempt to

collect earned and unearned wages, maintenance and

cure, repatriation expenses, and the value of lost per-

sonal effects which is due him. Defendant did not begin a

thorough investigation of plaintiff's claim until September

30, 1976. The investigation was not made with reason-

able diligence. Defendant’s failure to pay maintenance

and cure, repatriation expenses, the cost of his personal

effects, and earned and unearned wages to plaintiff con-

stituted arbitrary, unreasonable, callous, and willful dis-

regard of plaintiff's rights. Defendant’s recalcitrance in

failing properly to pay plaintiff's claim has forced plain-

tiff “to hire a lawyer and go to court to get what was

plainly owed him under laws that are centuries old.”

Vaughan v. Atkinson, 369 U.S. 527, 531 (1963). De-

fendant should have made the payments voluntarily and

without delay.

22. During the period from April 2, 1976, through

April 7, 1976, inclusive, defendant paid plaintiff $511.02.

23. The evidence disclosed that, on some occasions

when employees of defendant are required to leave the

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barge on account of illness or for personal reasons, they

are permitted by defendant to terminate their employment

and receive (1) their contractual annual bonus of ten

percent on straight time pay earned to the date of termi-

nation and (2) their contract completion bonus of sixteen

and two-thirds percent of earned straight time pay. The

terms of the contract provide that such bonuses are not

payable unless the employment term is completed by the

employee. Defendant did not offer, and plaintiff did not

request, a “job completion” termination of plaintiff's em-

ployment contract.

24. Plaintiff began working as a welder for Viking

Offshore Services on May 5, 1976.

25. The pipeline project that “Lay Barge 27” was

assigned to perform was completed by September 15,

1976. Plaintiff's employment with defendant would have

been terminated on or before September 15, 1976, had

he not become ill and been discharged by defendant.

26. Plaintiff was employed by defendant’s parent com-

pany, J. Ray McDermott & Co., Inc., on October 7, 1976,

as a pipeline welder working in the Gulf of Mexico, at

the rate of $10.75 an hour.

27. The parties have stipulated that plaintiff's air fare

from Antwerp, Belgium, to Houston, Texas was $600.00.

They have also stipulated that the value of plaintiff's lost

personal effects was $1,595.00.

28. For the pain and suffering which plaintiff endured

by reason of his .-juries referred to above, plaintiff is

entitled to damages in the amount of $5,000.00.

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CONCLUSIONS OF LAW

1. The court has jurisdiction over the parties and

the subject matter of this action.

2. Plaintiff's first cause of action is brought as the

result of his personal injuries received while in the service

of “Lay Barge 27”. As a seaman injured in the service

of his vessel, “Lay Barge 27”, plaintiff is entitled to all

of the protections and remedies afforded by the Jones

Act, 46 U.S.C. § 688, and the general maritime law of

the United States.

3. As his second cause of action, plaintiff seeks to

recover earned and unearned wages due and unpaid,

maintenance and cure, the value of personal effects left

on the barge, repatriation expenses, and penalty wages

under 46 U.S.C. § 596.

4. At all times material to this action, “Lay Barge

27” was a vessel in navigation, and plaintiff was a member

of its crew.

5. An absolute and non-delegable duty is imposed on

the owner of a vessel in navigation to furnish a vessel

reasonably safe and fit for its intended purpose. E.g.,

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960);

Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946);

Webb v. Dresser Industries, 536 F.2d 603 (Sth Cir.

1976), cert. denied, 429 U.S. 1121 (1977); White v.

Rimrock Tidelands, Inc., 414 F.2d 1336 (Sth Cir. 1969).

The shipowner’s duty to maintain a seaworthy vessel is

absolute, and a cause of action for breach of that duty

arises even though the unseaworthy condition was un-

known to the owner. E.g., Webb v. Dresser Industries,

supra. The obligation includes the duty to provide a crew

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fit in numbers, ability and disposition. See, e.g., Usner v.

Luchenback Overseas Corporation, 400 U.S. 494 (1971);

Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S.

336 (1955); Clevenger v. Star Fish & Oyster Co., 325

F.2d 397 (1963). The shipowner is absolutely liable for

injuries to a seaman caused by an unseaworthy condition

on the vessel. E.g., Mitchell v. Trawler Racer, Inc., supra.

It does not matter that the condition of unseaworthiness

may be transitory. Mitchell v. Trawler Racer, Inc., supra.

6. The accident which occurred on April 1, 1976,

and which forms the basis of plaintiff's claim, was proxi-

mately caused by the failure of the defendant to maintain

a crew competent in both numbers and skill on board

“Lay Barge 27” at all times. This failure on the part of

the defendant was a breach of the shipowner’s absolute

and nondelegable duty to maintain a vessel fit for its in-

tended purpose at all times and rendered “Lay Barge 27”

unseaworthy.

7. Plaintiff was forced to leave the service of the

vessel “Lay Barge 27” solely because of the disability

caused by his injuries from the accident of April 1, 1976.

As the result of the personal injuries plaintiff received

on April 1, 1976, he suffered physical pain and mental

anguish, for which he is entitled to be compensated by

defendant in the amout of $5,000.00.

8. A seaman is entitled to recover maintenance and

cure whenever he is disabled in the service of the ship.

The Osceola, 189 U.S. 158 (1903). The obligation to

provide maintenance and cure is an incident of the em-

ployment contract and extends during the period when

the seaman is incapacitated to do a seaman’s work and

continues until he reaches maximum medical recovery.

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Calmar Steamship Corp. v. Taylor, 303 U.S. 525 (1938);

Vaughan v. Atkinson, 369 U.S. 527 (1962). Plaintiff is

entitled to recover maintenance from April 1, 1976, the

date of plaintiff's injury and the date plaintiff left “Lay

Barge 27”, through May 3, 1976, the day he was found

fit for duty and had reached maximum medical recovery,

a period of thirty-two days, at the rate of $15.00 a day.

The total maintenance due plaintiff is $480.00. The plain-

tiff is also entitled to recover the sum of $200.00 that he

paid as medical expenses in Belgium and the United

States.

9. A seaman disabled in the service of the ship is

entitled to recover wages, usually referred to as “lost

wages” or “unearned wages’ to the end of the voyage,

The Osceola, 189 U.S. 158 (1903), or for the period

of time contemplated by his employment contract or until

he has reached the maximum medical cure and can work,

whichever occurs first. Vickers v. Tumey, 290 F.2d 426

(5th Cir. 1961); Martinez v. Star Fish & Oyster Co.,

Inc., 386 F. Supp. 560 (S.D. Ala. 1974); Cassidy v.

Steamship American Falcon, 280 F. Supp. 663 (E.D.

La. 1968); Warren v. U.S., 75 F. Supp. 836 (D. Mass.

1948). Plaintiff is entitled to recover: unearned wages

from April 2 (the first day after his injury for which

he was not paid full wages) until May 3, 1976 (the date

he was found fit for duty by Dr. Max), a period of thirty-

one days. Unearned wages shall be calculated at a rate

of $101.20 per day, i.e., his straight-time wage as a pipe-

line welder, plus one-thirtieth of his expatriation bonus.

The $511.02 paid plaintiff during the period April 2,

1976, to April 7, 1976, shall be deducted from the un-

earned wages due plaintiff. The total unearned wages

due plaintiff, after deduction, is $2,626.18.

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10. Plaintiff is entitled to recover all earned wages

through the date of his discharge, i.e., the $412.50 with-

held from plaintiff's wages to cover return travel expenses.

ii. Defendant’s failure to promptly pay plaintiff the

$412.50 withheld from his earned wages constitutes a

withholding of wages without sufficient cause, which is

prohibited by 46 U.S.C. § 596. Plaintiff is entitled to

recover a penalty from defendant for the wrongful with-

holding of earned wages pursuant to such statute. The

period during which the penalty runs is to be determined

by the sound discretion of the district court and depends

on the equities of the case. Carribean Federation Lines

v. Dahl, 315 F.2d 370 (Sth Cir.), cert. denied, 375 US.

831 (1963); Ventiadis v. C. J. Thibodeaux & Co., 295

F. Supp. 135 (S.D. Tex. 1968). Accord, Prindes v. S. S.

African Pilgrim, 266 F.2d 125 (4th Cir. 1959). Contra,

Escoba v. S. S. Washington Trader, 503 F.2d 271 (9th

Cir. 1974), vacated and remanded on other grounds, 423

U.S. 1070 (1976); Swain v. Isthmian Lines, Inc., 360

F.2d 81 (3d Cir. 1966). The aim of 46 U.S.C. § 596

is to protect seamen from the harsh consequences of

arbitrary and unscrupulous actions of their employers.

American Foreign Steamship Co. v. Matise, 423 U.S.

150 (1975); Collie v. Ferguson, 281 U.S. 52 (1930).

On the facts of this case, the appropriate period for im-

position of the statutory penalty is from the date of dis-

charge through the date of plaintiff's reemployment, i.e.,

from April 1, 1976, to May 5, 1976, a period of thirty-

four days. The wage rate to be used for computing the

penalty is that for straight-time wage as a pipeline welder,

plus one-thirtieth of the expatriation bonus, i.e., $101.20.

The penalty due plaintiff from defendant is $202.40 per

day for thirty-four days, a total of $6,881.60.

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12. Plaintiff is entitled to recover the sum of $600.00

he expended for air fare from Antwerp, Belgium, to

Houston, Texas, after he was discharged. He is also en-

titled to recover the sum of $1,595.00, to reimburse him

for personal effects left on board “Lay Barge 27” when

he was discharged.

13. The award of prejudgment interest in an admiralty

action is addressed to the sound discretion of the district

court. E.g., Scola v. Boat Frances R., Inc., No. 79-1169

(1st Cir. March 25, 1980); Howell v. Marmpegaso Com-

pania Naviera, 578 F.2d 87 (Sth Cir. 1978); Harrison v.

Flota Mercante Grancolombiana, S.A., 577 F.2d 968

(5th Cir. 1978); Brown v. Aggie & Millie, Inc., 485 F.2d

1293 (Sth Cir. 1973). See generally, Annot., 34 A.L.R.

Fed. 126 (1977). An award of prejudgment interest is

the rule and should be denied only under certain peculiar

circumstances not present in this case. E.g., McCormack

v. Noble Drilling Corp., 608 F.2d 169 (5th Cir. 1979);

Dow Chemical Co. v. M/V Gulf Seas, 593 F.2d 613

(5th Cir. 1979). Although a federal court sitting in

admiralty is not bound by the interest rate set by state

law, consideration of it is proper. Sabine Towing & Trans-

portation Co., Inc. v. Zapata Ugland Drilling, Inc., 553

F.2d 489 (Sth Cir.), cert. denied, 434 U.S. 855 (1977);

Geotechnical Corporation of Delaware v. Pure Oil Co.,

214 F.2d 476 (Sth Cir. 1954). The judgment rate of

interest in Texas is nine percentum per annum. TEX.

REV. CIV. STAT. ANN. art. 5069-1.05 (Vernon 1971),

as amended. Neither plaintiff nor defendant presented

any evidence justifying a different rate of interest. Under

the circumstances of this case, plaintiff is entitled to pre-

judgment interest at the rate of nine percentum per an-

num from April 1, 1976, the date of plaintiffs injury

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and discharge, to the date of judgment on $5,913.68,

the total recovery for maintenance, cure, repatriation ex-

pense, the cost of lost personal effects and earned and un-

earned wages. The prejudgment interest due plaintiff

totals $2,506.89.

14. Because defendant’s failure to pay maintenance,

cure, repatriation expenses, the cost of lost personal ef-

fects, and earned and unearned wages was the result of

recalcitrant conduct and arbitrary, unreasonable, callous,

willful, and wanton disregard of plaintiff's rights, and be-

cause of defendant’s failure to investigate plaintiff's

claim with due diligence, plaintiff is entitled to attorney’s

fees. Vaughan v. Atkinson, 369 U.S. 527 (1962);

Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968 (Sth

Cir. 1978). An attorney’s fee of forty per centum of

these items of recovery, including plus prejudgment

interest (which is the rate provided by plaintiffs agree-

ment with counsel), is reasonable under the circum-

stances. The amount of the attorney’s fees due plaintiff

is $3,368.23.

15. Because plaintiff did not intentionally misrepresent

or conceal any material medical facts the disclosure of

which was plainly desired, he is not barred from recovery

by his failure to disclose his prior history of hemorroids.

McCorpen v. Central Gulf Steamship Corp., 396 F.2d

547 (Sth Cir.), cert. denied, 393 U.S. 894 (1968).

16. Costs shall be taxed against defendant.

SIGNED and ENTERED this 6th day of May, 1980.

/s/ WM. WAYNE JUSTICE

Chief Judge

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APPENDIX III

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 80-1599

Summary Calendar

D. C. Docket No. CA-S-78-26

DANNY L. GRIFFIN,

Plaintiff-Appellant,

versus

OCEANIC CONTRACTORS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

Before BROWN, POLITZ and TATE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the East-

ern District of Texas, and was taken under submission

by the Court upon the record and briefs on file, pursuant

to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed.

June 17, 1981

Issued As Mandate: Jul. 9, 1981

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT A

No. 80-1599

Summary Calendar

DANNY L. GRIFFIN,

Plaintiff-Appellant,

versus

OCEANIC CONTRACTORS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

( JUNE 17, 1981 )

Before BROWN, POLITZ and TATE, Circuit Judges.

TATE, Circuit Judge.

The plaintiff, Danny Griffin, was injured on a vessel

while in the employ of the defendant, Oceanic Con-

tractors, Inc. He brought suit against his employer seek-

ing damages under the Jones Act, 46 U.S.C. § 688, the

general maritime law of the United States, and for penalty

wages under 46 U.S.C. § 596.’

1. 46 U.S.C. § 596 provides:

A-19

After a judge trial on the merits, the trial court found

that Griffin’s injury was caused by an unseaworthy con-

dition of the vessel, and accordingly awarded him an

amount totalling $23,670.40. On appeal, Griffin contends

that this award was insufficient due to the trial court’s

error (1) for failure to award him lost wages for his

entire contractual term, (2) for failure to include any

bonus and/or overtime pay in the computation of earned

and/or unearned wages, and (3) for failure to properly

apply the penalty wage statute, 46 U.S.C. § 596.

Facts

Plaintiff Griffin signed an employment contract on

February 18, 1976, with the defendant, Oceanic Con-

tractors, Inc. [hereinafter “Oceanic”], agreeing to work

as a senior pipeline welder on defendant’s vessels operat-

ing in the North Sea. The contract stipulated that his

employment would commence “on the date of [his] de-

parture and will continue . . . until December 15, 1976

or until Oceanic’s 1976 pipeline committal in North Sea

is fulfilled whichever shall occur first.”

Griffin shortly thereafter flew to Antwerp, Belgium,

and reported to the vessel, Lay Barge 27, which was tied

four days after the seaman has been discharged, whichever first

happens; and in all cases the seaman shall be entitled to be

the time of his discharge on account of wages a sum

third part of the balance due him. Every master

or neglects to make payment in the manner

hereinbefore mentioned without sufficient cause shall pay to the

seaman a sum equal to two days’ pay for each and every day

payment is delayed beyond the respective periods,

shall be recoverable as wages in any claim made

before the court; but this section shall not apply to masters or

owners of any vessel the seamen of which are entitled to share

in the ise or voyage. This section shall not

apply to fishing or whaling vessels or yachts.

A-20

up in the harbor for winter repairs. On April 1, 1976,

in getting the barge ready to put to sea, Griffin developed

traumatic thrombosed hemorrhoids when he attempted to

move an empty oxygen bottle by himself.

On April 3, 1976, emergency surgery was performed

on Griffin at a hospital in Antwerp, where he remained

until April 5, 1976. On April 6, 1976, he flew back to

his home in Houston, Texas, and was there examined by

Dr. Ernest Max, a colon and rectal surgeon, on April

6, 14 and 28, 1976. Griffin reached maximum medical

recovery and was found fit to return to duty on May 3,

1976.

Griffin brought suit against Oceanic under the Jones

Act, general maritime law, and 46 U.S.C. § 596, for its

failure to pay maintenance and cure, repatriation ex-

penses, and earned and unearned wages. The trial court

found that the vessel was unseaworthy due to an insuf-

ficient number of the crew members, and that Griffin’s

injury resulted from this unseaworthy condition (because

he had no aid in moving the oxygen bottle.)

The trial court awarded the damages totalling $23,670.-

40 to Griffin, as follows: (1) $5,913.68, ae recovery for

maintenance and cure, earned and unearned wages, re-

patriation expense and the value of lost personal effects;

(2) $2,506.89, as prejudgment interest on the recovery

for maintenance and cure, earned and unearned wages,

repatriation expense, and the value of lost personal ef-

fects; (3) $3,368.23, as attorney’s fees for the recovery

for maintenance and cure, earned and unearned wages,

repatriation expense and prejudgment interest; (4) $5,-

000.00, as recovery for pain and suffering and penalty

wages; and (5) $6,881.60 as penalty wages.

A-21

Griffin’s appeal questions only the refusal of the trial

court to allow him full wages (straight time, overtime,

and bonuses) for the entire period of his contractual

employment (the trial court limited the wage-recovery to

the period of disability), and its failure to award him the

full statutory penalty, 46 U.S.C. § 596 (quoted at note

1), of double-daily wages for each day until the time

of actual payment in 1980 of the unpaid wages earned in

1976 (the trial court awarded him double the daily rate

of straight time wages for the 34-day period of unemploy-

ment during 1976, or a total of $6,881.60).

The trial court allowed Griffin to recover unearned

wages from the day after his injury, April 2, to the date

he was found fit for duty by Dr. Max, May 3, 1976. On

appeal, Griffin urges that the trial court committed an

error of law in not awarding him unearned wages until

the ending date of his contractual period of employment,

which in this instance was September 15, 1976, the date

on which Oceanic’s pipelaying season was completed in

the North Sea.

Griffin advances three separate theories upon which

he should recover unearned wages from April 1 to Sep-

tember 15: (1) under the general maritime law (as part

of his claim for maintenance, wages, and cure); (2) as

general damages under the Jones Act; and (3) under a

breach of contract theory.

We find all three to be inapplicable to the facts before

us.

The right of an injured seaman to recover unearned

maintenance-wages-cure (M-W-C) wages under the gen-

A-22

eral maritime law of the United States until either (1)

the end of the voyage or (2) the end of the contractual

period of employment is well established. See, e.g., The

Osceloa,, 189 U.S. 158, 175, 23 S.Ct. 483, 487 (1903);

Isthmian Lines v. Hare, 334 F.2d 521 (Sth Cir. 1964);

Vickers v. Tumey, 290 F.2d 426, 434 (Sth Cir. 1961);

Rofer v. Head & Head, Inc., 226 F.2d 927, 929 (Sth

Cir. 1955); 2 M. Norris, The Law of Seamen 17 § 544,

p. 17 (3d ed. 1970). However, if the seaman recovers

from the injury and is fit to return to duty prior to the

termination of the voyage or his contractual period, then

he is not entitled to continue to receive M-W-C wages

past that point.? See Vickers v. Tumey, supra, 290 F.2d

at 434-435; Martinez v. Star Fish and Oyster Co., 386

F.Supp. 560, 564 (S.D. Ala. 1974); Warren v. United

States, 75 F.Supp. 836, 838 (D.C. Mass. 1948).

As Griffin contends, lost wages may also form an

element of damages in a suit brought under the Jones

Act. See Vickers v. Tumey, supra, 290 F.2d at 434.

Nevertheless, even under the Jones Act (under which a

plaintiff may recover for loss of future earnings after

the termination of voyage or contract), Griffin is not

allowed to recover for lost wages past May 3, 1976, be-

cause he was found to have fully recovered as of that

date and was found to have incurred no diminution of

future earnings as a result of his injury. Any decrease

2. In Warren v. United States, 75 F. Supp. 836, 838 (D.C. Mass.

1948), the court found that a seaman was entitled to M-W-C wages

“until the time the seaman is not only well but able to find suitable

employment.” For purposes of the present case, we pretermit discus-

sion of whether a seaman has to be both fit for duty and able to

find suitable employment in order for M-W-C wages to be terminated,

for here the trial court found as a fact that Griffin had accepted new

aye , — 1976, just two days after he was pronounced

t for A

A-23

in earnings after May 3 was due to Griffin’s failure to

return to work for Oceanic, not from his injury, since

Oceanic (see below) held his position open for him.

Finally, Griffin contends he is due unearned wages

through September 15, 1976, because the defendant

breached his employment contract by wrongfully dis-

charging the defendant on April 1, 1976. The trial court

did indeed find that Griffin was discharged effective April

1, but it failed to state that such a discharge constituted

a breach of contract. Although notice was sent to Griffin

that his discharge was effective April 1, such notification

was not transmitted until June 2 (after unsucessful efforts

to contact Griffin and discover when he would return to

work) (Def. Ex. 11, 12, Tr. 364-67), and the evidence

in the record establishes that Griffin’s job was held open

until at least June 1, 1976 (Def. Ex. 12), that he made

no effort to return to work for Oceanic (indeed, he ob-

tained new employment on May 5), and that Oceanic

made numerous attempts to contact Griffin for the purpose

of re-employment.*

The plaintiff also contends that the trial court erred

in not awarding him (1) bonus pay for the period prior

to his injury and (2) bonus and overtime pay for the

period between April 2 and May 3.

3. The district court did not make an express finding as to the

nonbreach of contract, but under the virtually uncontradicted evi-

dence, any finding of breach would have been clearly erroneous, so

the issue may be reviewed by us without remand. See Kratzer v.

Capital Marine Supply, Inc., __._s—‘ F.2d . (Sth Cir.

1981) (sl. op. p. 7218, 7225, May 20, 1981).

A-24

We disagree. Griffin’s contract provided for (1) an

annual bonus and (2) a contract-completion bonus. The

trial court found that “the terms of the contract provide

that such bonuses are not payable unless the employment

term is completed by the employee.” Since the employ-

ment term was not completed, we do not find that the

trial court was clearly errcneous in not including a pro-

portionate amount of these bonuses in computing Griffin’s

unearned wages, either on a contract theory or as Jones

Act wage damages.

Furthermore, the district court did not include any

overtime pay for the period between April 2 and May 3.

Again, we cannot say that the district court erred. The

actual amount of overtime was uncertain, and hence any

inclusion of such would have been purely speculative.

See Martinez v. Star Fish and Oyster Co., 386 F. Supp.

at 564; Keefe v. American Pacific Steamship Co., 110

F. Supp. 853, 856 (S.D. Cal. 1953).

The district court found that Oceanic’s failure to

promptly pay $412.50 withheld from wages already earn-

ed by Griffin constituted a withholding of wages without

sufficient cause. Under 46 U.S.C. § 596, Griffin was en-

titled to recover a penalty for this wrongful withholding.

The statutory penalty requires payment of a penalty of

(twice the daily wage rate for each) to the seaman until

he is actually paid (see note 1 for statutory text), which

in his case was not until September, 1980, after the

judgment below. The trial court computed this penalty,

however, by doubling Griffin’s daily straight-time wage

only for the period from April 1, 1976 to May 5, 1976,

the date of his re-employment.

A-25

Griffin contends that the trial court erred in so apply-

ing the wage penalty only from April 1 through May 5,

1976, arguing that it should have been awarded for

each day during which the failure to pay continued, a

period not ending until September, 1980.

In this circuit, the duration on applying the wage pen-

alty statute (46 U.S.C. § 596) is left to the sound dis-

cretion of the district court. Caribbean Federation Lines

v. Dahl, 315 F.2d 370, 374 (Sth Cir.), cert. den., 375

U.S. 831 (1963). Ventiadis v. C. J. Thibodeaux & Co.,

295 F.Supp. 135, 138 (D.C. Tex. 1968).* Absent any

abuse, we do not disturb the trial court’s order.

Here, after considering the equities involved, the trial

court granted Griffin penalty wages only for the period

4. The plaintiff Griffin accurately states that other circuits view

§ 596 as establishing a mandatory time period for its application.

However, the Supreme Court in American Foreign S.S. Co. v. Matise,

423 US. 150, 152 n.1, 96 S.Ct. 410, 312 n.1 (1975) recently noted

this circumstance and also that the Fifth Circuit view as to the

discretionary time period application is shared by a majority of cir-

cuits that have considered the issue:

While the Third and Ninth Circuits have found that the trial

judge has no discretion in determining the amount of the penalty

under § 596, Swain v. Isthmian Lines, Inc., 360 F.2d 81 (CA

; Escobar v. S.S. Washington Trader, 503 F.2d 271

974), cert. pending sub nom. American Trading Transp.

Co. v. Escobar, No. 74-1184, the First, Second, Fourth, and

Fifth Circuits have concluded that the length of time to which

the penalty applies—and hence its amount—is subject to the

discretion of the District Court. Mavromatis v. United Greek

Shipowners Corp., 179 F.2d 310 (CA 1 1950); Forster v. Oro

Navigation Co., 228 F.2d 319 (CA 2 1955), aff’g 128 F. Supp.

113 (S.D.N.Y. 1954); Southern Cross S.S. Co. v. Firipis, 285

F.2d 651 (CA 4 1960), cert. denied, 365 U.S. 869, 81 S.Ct.

903, 5 L.Ed.2d 859 (1961); Caribbean Federation Lines v.

Dahl, 315 F.2d 370 (CA 5 1963).

Under the precedential rule of this circuit, until it is overruled by

en banc opinion, this panel is bound by prior circuit precedent.

A-26

during which he was actually not employed. We are

unable to state that the district court abused its discre-

tion by so doing.

Conclusion

In summation, we find that the trial court neither

abused its discretion nor committed any error of law in

the computation of the damage award granted to plain-

tiff Griffin. We, therefore, AFFIRM the decision of the

trial court.

AFFIRMED.

A-27

APPENDIX IV

46 U.S.C. § 596

The master or owner of any vessel making coasting

voyages shall pay to every seaman his wages within two

days after the termination of the agreement under which

he was shipped, or at the time such seaman is discharged,

whichever first happens; and in case of vessels making

foreign voyages, or from a port on the Atlantic to a port

on the Pacific, or vice versa, within twenty-four hours

after the cargo has been discharged, or within four days

after the seaman has been discharged, whichever first

happens; and in all cases the seaman shall be entitled to

be paid at the time of his discharge on account of wages

a sum equal to one-third part of the balance due him.

Every master or owner who refuses or neglects to make

payment in the manner hereinbefore mentioned without

sufficient cause shall pay to the seaman a sum equal to

two days’ pay for each and every day during which pay-

ment is delayed beyond the respective periods, which sum

shall be recoverable as wages in any claim made before

the court; but this section shall not apply to masters or

owners of any vessel the seaman of which are entitled to

share in the profits of the cruise or voyage. This section

shall not apply to fishing or whaling vessels or yachts.

R.S. § 4529; Dec. 21, 1898, c. 28, §§ 4, 26, 30, Stat.

756, 764; Mar. 4, 1915, c. 153, § 3, 38 Stat. 1164.

tUIOf

FI ’ Court, U.S.

JAN 15 ap.

No. 81-614

— Court of the United States

OcTOBER TERM, 1981

DANNY L. GRIFFIN,

Petitioner,

Vv.

OCEANIC CONTRACTORS, INC.,

Respondent.

On Writ of Certiorari To The United States

Court of Appeals For The Fifth Circuit

JOINT APPENDIX

THEODORE GOLLER

RoBertT A. CHAFFIN FULBRIGHT & JAWORSKI

FRIEDMAN & CHAFFIN 800 Bank of the Southwest

3500 Travis Building

Houston, Texas 77002 Houston, Texas 77002

(713) 528-4141 (713) 651-5151

Counsel jor Petitioner Counsel for Respondent

Petition for Certiorari Filed September 14, 1981

Certiorari Granted November 16, 1981

TABLE OF CONTENTS

The statute involved — 46 United States Code,

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Bere HUGE TEUMIIED ccc ccccccccccesess

EE owns wg dice 00 0e05eeeeees

I a i ss i tie hee

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Judgment of the District Court .............

Satisfaction of Judgment ..................

Judgment and Opinion of the Court of Appeals

PEED cccndccccascccecuees

Plaintiff's Exhibit 1(a)-(f)—-Employment Agree-

ment between Oceanic Contractors and Danny

L. Griffin, dated February 18, 1976 .......

Plaintiff's Exhibit 29 -—— Letter from Mr. Chaffin

to Mr. Goller dated November 17, 1978 ....

Excerpt from Court Reporter’s transcript of tes-

timony commencing on page 15, line 18, and

continuing through page 17, line 13 .......

Defendant’s Exhibit No. 15 — Telex message

Pe CUP Gidvcescccccubeesess

Defendant’s Exhibit No. 14 — Telex message

PT MD iets sees oboe ecnees

Defendant’s Exhibit No. 13 — Telex message

SE Gly WUE covecccccessveceses

Defendant’s Exhibit No. 12 — Telex message

SE Gh GUE SuleWe cevcccvecvcdees

Page

> Ne

Defendant’s Exhibit No. 11 — Handwritten note

of Charles F. Layrisson, defendant’s Personnel

Administrator ........--e++eeeeeeeeeees

Defendant’s Exhibit No. 9 — Telex dated

September 30, 1976 ....---+eeeeeereees

Defendant’s Exhibit No. 10 — Telex dated

October 1, 1976 .....---eeeceeeeeeeees

Page

STATUTE INVOLVED

46 U.S.C. § 596

The master or owner of any vessel making coasting

voyages shall pay to every seaman his wages within two

days after the termination of the agreement under which

he was shipped, or at the time such seaman is discharged,

whichever first happens; and in case of vessels making

foreign voyages, or from a port on the Atlantic to a port

on the Pacific, or vice versa, within twenty-four hours

after the cargo has been discharged, or within four days

after the seaman has been discharged, whichever first

happens; and in all cases the seaman shall be entitled to

be paid at the time of his discharge on account of wages

a sum equal to one-third part of the balance due him.

Every master or owner who refuses or neglects to make

payment in the manner hereinbefore mentioned without

sufficient cause shall pay to the seaman a sum equal to

two days’ pay for each and every day during which pay-

ment is delayed beyond the respective periods, which sum

shall be recoverable as wages in any claim made before

the court; but this section shall not apply to masters or

owners of any vessel the seaman of which are entitled to

share in the profits of the cruise or voyage. This section

shall not apply to fishing or whaling vessels or yachts.

R.S. § 4529; Dec. 21, 1898, c. 28, §§ 4, 26, 30, Stat.

756, 764; Mar. 4, 1915, c. 153, § 3, 38 Stat. 1164.

2-3-78

5-11-79

10-29-79

2-28-80

3-13-80

RELEVANT DOCKET ENTRIES

PLAINTIFF'S ORIGINAL COMPLAINT

ORIGINAL ANSWER OF DEFENDANT

OCEANIC CONTRACTORS, INC.

OMNIBUS ORDER dated 10-25-79. Case set

for Final Pre-Trial on February 28 or 29, 1980

and for Trial on March 7, 1980. ww

FINAL PRE-TRIAL HEARING HELD. Case

to take one day to try. Objections to deposition

testimony to be filed by Thursday of next week.

Court admonished attorneys for the way the

pre-trial order was prepared. Supplemental Pre-

Trial Order to be prepared and filed.

CASE TO TRIAL at 9:15 a.m. Opening re-

marks waived. Plaintiff's Motion for Protection

taken up. Court had the Courtroom Clerk

state for the record a telephone conversation

had with Plaintiff's counsel regarding whether

or not he intended to urge his Motion to

Compel. Plaintiff's counsel stated he agreed

with the statement made by the Courtroom

Deputy that he would advise within the next

few days if he desired to urge the motion and

that no word was received from him. Mr.

Chaffin said he had not seen all the docu-

ments requested and was not sure of their

contents. Counsel for Defendant said he had

no knowledge of this dispute until he w

5-7-80

6-2-80

handed the motion yesterday. Court refused

to make a credibility choice between attorneys

and said if he found the Plaintiff was pre-

judiced he would entertain further testimony.

All exhibits listed in the Final Pre-Trial Order

were received it evidence. Defendant stated

its objection to Pitf’s Exhibits Nos. 29 and

30. Court stated since this is a bench trial,

the objection would be overuled.

FINDINGS OF FACT AND CONCLUSIONS

OF LAW. WWJ V35 p. 83 (dated May 6,

1980)

JUDGMENT dated May 6, 1980. Plaintiff to

recover from Defendant the sum of $23,670.-

40. The total amount of this judgment, in-

cluding attorney’s fees, i.e., $23,670.40, shall

bear interest at the rate of 9% per annum

from the date of this judgment until paid, and

- that Defendant shall pay all costs of court.

WWI V35 p.84

PLAINTIFF'S NOTICE OF APPEAL.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

C.A. NO. S-78-26-CA

[Filed Pursuant to F.R.C.P. 9(h)]

DANNY L. GRIFFIN

vs.

J. RAY McDERMOTT & CO., INC. and

OCEANIC CONTRACTORS, INC.

PLAINTIFF'S ORIGINAL COMPLAINT

1. This action is brought pursuant to F.R.C.P. 9(h) as

a claim in admiralty.

2. Plaintiff is a resident citizen of Houston, Texas.

3. Defendant, J. RAY McDERMOTT & CO., INC., is

a corporation, which may be served with process by serv-

ing its registered agent for service of process, C T Cor-

poration System, 811 Dallas Avenue, Houston, Texas.

Defendant, OCEANIC CONTRACTORS, INC., is a

corporation, which may be served with process by serving

its registered agent for service of process, Mr. R. K.

Ritchie, 1010 Common Street, 24th Floor, New Orleans,

pare

4. At all times material hereto, Defendant, OCEANIC

CONTRACTORS, INC., operated as the alter ego of

Defendant, J. RAY McDERMOTT & CO., INC.

5. At the time of the occurrence made the basis of this

action, DANNY L. GRIFFIN was a Jones Act seaman

who was entitled to all of the protections of the Jones Act

as enumerated therein. As a Jones Act Seaman, Plaintiff

brings this cause of action under 28 U.S.C. § 1916, with-

out the necessity for prepayment of costs or the necessity

of depositing security therefor.

6. This action is brought within the purview of 46 U.S.C.

§ 688, hereinafter referred to as the Jones Act, and for

breach of the shipowner’s warranty to maintain a sea-

worthy vessel. Plaintiff would show that during the time

period February 1976 through April 1976, he received

serious and disabling injuries in the course and scope of

his employment while serving on board the vessel “Lay

Barge No. 27”. The injuries which your Plaintiff received

and herein complains of were proximately caused by and

resulted solely through the negligence of the Defendants,

their master, agents, servants and employees and/or be-

cause of the unseaworthiness of the aforementioned vessel.

7. Plaintiff would further show that the Defendants,

their master, agents, servants and employees, were negli-

gent and the aforementioned vessel was unseaworthy in

the following respects, to-wit:

a. Failure to supply Plaintiff with a sufficient num-

ber of competent co-employees by failing to pro-

vide Plaintiff, a welder, with a sufficient number

of competent welder’s helpers, to assist Plaintiff

in lifting and moving heavy objects, thus causing

Plaintiff to develop a serious hemorrhoid condi-

tion.

b. Failure to supply the Plaintiff with a safe place

to work.

c. Failure to properly outfit the vessel upon which

Plaintiff was serving with the necessary equip-

ment, personnel and devices with which to prop-

erly perform the duties to which Plaintiff was

assigned.

d. The actions of Plaintiff's supervisors were negli-

gent in that they failed to use ordinary and pru-

dent care in ordering the Plaintiff to perform the

duties which resulted in the injuries complained

of herein.

8. Plaintiff would show that by reason of the injuries

sustained as a result of the accident which occurred dur-

ing the time period February 1976 through April 1976,

he has suffered serious and disabling injuries. As a result

of said injuries, Plaintiff has suffered the loss of earnings

in the past, and the disability from which Plaintiff now

suffers and will, in all reasonable medical probability,

continue to suffer for the rest of his life has caused his

earning capacity to be permanently and materially di-

minished. In addition, Plaintiff has suffered great physical

pain and mental anguish in the past and, in all reasonable

medical probability, will continue to suffer on a perma-

nent basis great physical pain and mental anguish. Fur-

thermore, as a result of the injuries which your Plaintiff

sustained he has been afflicted with a substantial degree

of physical impairment which, in all reasonable medical

probability, is permanent. Plaintiff has also been forced

to incur expenses for medical and hospital care as a direct

result of the injuries complained of herein and, in all

reasonable medical probability, as a result of the injuries

complained of herein Plaintiff will continue to incur med-

ical and hospital expenses for the remainder of his life-

time. By reason of the foregoing, Plaintiff has been dam-

aged by the Defendants in an amount greater than the

jurisdictional limits of this Court.

9. At all times material hereto, your Plaintiff was a Jones

Act Seaman and, as such, he is entitled to all of the pro-

tections and remedies enumerated under the Jones Act.

Defendants are, therefore, liable to your Plaintiff to pay

maintenance and cure to Plaintiff as the result of injuries

received on the “Lay Barge 27”. Defendants have failed

and neglected to honor their obligations to Plaintiff to pay

the expenses of his maintenance and cure while incapaci-

tated as a result of the injuries complained of herein.

10. Further, Plaintiff would show that although demand

has been made upon the Defendants to pay the Plaintiff

the maintenance and cure that is properly due and owing

him under law, Defendants without just cause have wholly

failed and refused to pay Plaintiff the maintenance and

cure to which he is legally entitled. Defendants’ refusal

to pay has not had any »asis in law or in fact, and De-

fendants have not asserted and do not now assert that

Plaintiff did not become disabled while in service of the

aforementioned vessel. By reason of the foregoing, your

Plaintiff has been required to obtain legal counsel to assist

him in collecting sums which are rightfully due him as

maintenance and cure, and has obligated himself to pay

reasonable attorneys’ fees for legal services rendered in

regard to the collection of maintenance and cure which

is rightfully due your Plaintiff. Plaintiff herein prays that

upon final trial of this cause, Defendants be ordered to

pay all maintenance and cure due and owing him, to-

gether with interest thereon, and a reasonable attorneys’

fee to the undersigned counsel for legal counsel and as-

sistance rendered in collecting said maintenance and cure.

11. In addition to the damages of which Plaintiff has

heretofore complained, Plaintiff has been refused payment

of earned wages. Under applicable provisions of the Jones

Act, Plaintiff is entitled to recover earned wages due and

owing to him.

12. Plaintiff has also been refused payment of wages

until the end of the voyage of the aforementioned vessel,

the ending date of said voyage being currently unknown

to Plaintiff. Such wages until the end of the voyage are

rightfully due and owing to Plaintiff.

13. Defendant has refused and neglected, and still re-

fuses and neglects, without sufficient cause, to pay Plain-

tiff the wages due him. Plaintiff is entitled under appli-

cable provisions of the Jones Act to receive the wages

due him, and is further entitled to recover as wages a

sum equal to two days’ pay for each day during which

payment of such sum is delayed. Plaintiff prays that, upon

final trial of this cause, he be awarded all past due wages,

interest on those wages until the date of judgment, and

all amounts due him as penalties under applicable pro-

visions of the Jones Act.

14. By reason of the foregoing, Plaintiff has been re-

quired to obtain legal counsel to assist him in collecting

sums which are rightfully due him as wages, and he has

obligated himself to pay reasonable attorney’s fees for

legal services rendered in regard to the collection of such

sums. Plaintiff prays that, upon final trial of this cause,

Defendants be ordered to pay, pursuant to the general

maritime law, the Jones Act and Vernon’s Annotated Civil

Statutes, Article 2226, a reasonable attorney’s fee to the

undersigned counsel for legal assistance rendered in col-

lecting said wages.

15. Plaintiff has been refused payment of his repatriation

costs to which he become entitled by reason of his injury.

Plaintiff has been refused return of or payment for his

personal effects that remained aboard the aforementioned

vessel subsequent to his injury. Plaintiff prays that upon

final trial of this cause he be awarded all costs of re-

patriation and the reasonable value of his personal effects

that remained aboard the aforementioned vessel.

WHEREFORE, PREMISES CONSIDERED, Plaintiff

prays that process issue to be served upon the Defendants

in the form and manner prescribed by law, requiring the

Defendants to appear and answer herein, and that upon

final trial hereof Plaintiff have judgment against the De-

fendants for all sums heretofore pleaded for, with interest

thereon from date of trial, all costs of court, and all such

other and further relief to which Plaintiff may be entitled

and to which the court believes Plaintiff deserving, and

for which Plaintiff now prays.

Respectfully submitted,

FRIEDMAN AND CHAFFIN

Robert A. Chaffin

3500 Travis

Houston, Texas 77002

(713) 528-4141

ATTORNEYS FOR PLAINTIFF

THE STATE OF TEXAS §

COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day

personally appeared ROBERT A. CHAFFIN, known to

me to be the person whose name is subscribed hereto,

and who, being by me duly sworn, on oath deposed and

said:

“I am the ROBERT A. CHAFFIN who is the attorney

for Plaintiffs in the above styled and numbered cause. I

have read the foregoing Plaintiffs’ Original Complaint

designed to be filed in the above styled and numbered

cause, have personal knowledge of the facts and allega-

tions contained therein, and every fact and allegation con-

tained therein is true and correct.”

Robert A. Chaffin

SUBSCRIBED and SWORN TO before me this —___

day of , 1978, to certify which witness my

hand and seal of office.

Notary Public in and for

Harris County, TEXAS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

C. A. NO. S-78-26-CA

DANNY L. GRIFFIN,

Plaintiff

Vv.

OCEANICS CONTRACTORS, INC.,

Defendant

ANSWER OF DEFENDANT

OCEANIC CONTRACTORS, INC.

TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES, Oceanic Contractors, Inc., one of the

defendants herein, and for answer to the complaint of

Danny L. Griffin, plaintiff, would respectfully show as

follows:

First Defense

The complaint fails to state a claim against defendant

upon which relief can be granted.

Second Defense

Defendant admits the allegations contained in para-

graphs 1 and 2 of the plaintiff's complaint; admits the

allegations of paragraph 3 insofar as such allegations

pertain to this defendant; admits the allegations of para-

graph 6 of the complaint that on or about February,

1976 through April, 1976, the plaintiff was employed by

this defendant on Lay Barge No. 27, but denies the re-

maining allegations of said paragraph; denies the allega-

tions of paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14 and

15 of the complaint; and denies that plaintiff is entitled

to the relief prayed for in the prayer of his complaint.

Third Defense

For further answer, defendant would show that if the

plaintiff was injured, as alleged, which is not admitted

but expressly denied, such injury, if any, was caused solely

and proximately by his own negligent acts and conduct

and his failure to use that degree of care for his own

safety that a reasonably prudent person in the exercise

of ordinary care would have used under the same or

similar circumstances or, in the alternative, such failure

on his part was a proximate cause of his injury, if any.

Fourth Defense

For further answer, defendant would show that if plain-

tiff was injured on the occasion in question, as alleged,

which is not admitted but expressly denied, such injury

was the result of an unavoidable accident.

Fifth Defense

For further answer, defendant would show that plain-

tiffs disability or incapacity, if any, was caused by some

disease, condition of health, physical defect, injury and/or

other cause or combination of causes unrelated in whole

or in part to the alleged injury herein sued upon.

WHEREFORE, PREMISES CONSIDERED, defend-

ant prays that the plaintiff take nothing by is suit, that

his complaint herein be dismissed, and that defendant have

such other and further relief to which it may show itself

justly entitled.

FULBRIGHT & JAWORSKI

By:

Theodore Goller

900 Bank of the Southwest Bldg.

Houston, Texas 77002

(713) 651-5151

Attorneys for Defendant, Oceanic

Contractors, Inc.

CERTIFICATE OF SERVICE

I hereby certify that the foregoing answer was served

upon Mr. Robert A. Chaffin, Friedman and Chaffin,

3500 Travis, Houston, Texas 77002, attorney for plain-

tiff, by mailing a copy of same to him in a properly

addressed, stamped envelope this ___._ day of May,

1979.

Theodore Goller

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIVIL ACTION NO. S-78-26

DANNY L. GRIFFIN

OCEANIC CONTRACTORS, INC.

FINDINGS OF FACT

1. This civil action is brought by Danny Laried Griffin,

as a seaman, against Oceanic Contractors, Inc. At all

times material to this action, plaintiff was, and is now, a

resident of the State of Texas, and defendant, Oceanic

Contractors, Inc., was the owner and operator of “Lay

Barge 27”.

2. At all relevant times, plaintiff was a seaman, and

the “Lay Barge 27” was a vessel in navigation. The “Lay

Barge 27” is a special purpose vessel, designed and out-

fitted for the assembly and installation of marine pipe-

lines.

3. On February 18, 1976, plaintiff signed an employ-

ment contract with defendant in New Orleans, whereby

he agreed to work as a pipeline welder on board defend-

ant’s vessels operating in the North Sea. The employment

contract specified that plaintiff's employment was to begin

on the date plaintiff departed the United States and ex-

tend “until December 15, 1976, or until Oceanic’s 1976

pipeline committal in the North Sea is fulfilled, whichever

shall occur first.” The employment contract also provided

that, for his work as a pipeline welder, plaintiff would

receive a base pay rate of $9.65 per hour and an expatria-

tion premium of $720.00 per month; that for his work as

a structural welder, plaintiff would be paid $6.65 per

hour and an expatriation premium of $495.00 per month.

4. On the same day the employment contract was

signed, plaintiff reported to a physician, selected and paid

by defendant, in New Orleans, Louisiana, for a physical

examination. Plaintiff had had several minor episodes of

hemorrhoids in the year preceding the examination. Plain-

tiff answered all questions asked by defendant’s physician

at the time of the physical examination. Defendant's

physician did not ask plaintiff if he, plaintiff, had ever

suffered from hemorrhoids; however, the doctor did ex-

amine plaintiff's rectum. The physical examination form

states, directly above the space for plaintiff's signature:

“I understand this is a limited examination and does not

eliminate all possibilities of physical impairment or

disease.” In light of this provision, a reasonable interpre-

tation of the physical examination form is, that defend-

ant’s physician was only interested in information speci-

fically requested. Plaintiff did not intentionally misrepre-

sent or conceal any material medical facts.

5. On March 7, 1976, defendant provided plaintiff

with air transportation to Antwerp, Belgium. Upon

arrival, plaintiff reported to the “Lay Barge 27”, which

was berthed in the harbor of Antwerp.

6. On the “Lay Barge 27”, each welder was normally

assigned a welder’s helper, whose only task was to assist

that welder in the performance of his duties. At the time

of the accident made the basis of plaintiff's claims, “Lay

Barge 27” was so shorthanded that only one welder’s

helper was available for the ten to twelve welders assigned

to each work shift.

7. The North Sea is a hostile and inclement body of

water during the winter months. In order that “Lay Barge

27” would be ready to put to sea as early in the year as

possible, defendant followed the practice of having barge

crews on board approximately one month ahead of time,

to repair damages from the previous year and to perform

rigging and maintenance operations necessary to ready

the barge for seagoing service. It was contemplated by

defendant that, as soon as the barge was made ready by

its crew and the North Sea was calmed, “Lay Barge 27”

would put to sea and begin its pipe laying season.

8. Oxygen is essential to the welding process. It is

usually supplied to welders in tubular metal tanks, called

“oxygen bottles”, weighing about 125 to 150 pounds.

When a welder changes the location of his work, it is

necessary to move the oxygen bottle he is using to the

new site. It is also necessary to move oxygen bottles, in

order to replace an empty one with a full one. Moving

an oxygen bottle is a task ordinarily and normally as-

signed to 2 welder’s helper. It is a difficult assignment,

for the oxygen bottles have a smooth surface not con-

ducive to lifting or moving. If an unobstructed passage

is present, a bottle is commonly shifted by rolling it across

the deck of the vessel; otherwise, it must be lifted across

obstacles.

9. “Lay Barge 27” was shorthanded on and before

April 1, 1976, as above set out, in that there were an

insufficient numbers of welders’ helpers available to assist

the welders assigned to the vessel. On that day, plaintiff

was engaged in repair and maintenance on the deck of

the “Lay Barge 27”, which was much cluttered by pipes,

machinery and other obstructions. When it became neces-

sary for plaintiff to move an oxygen bottle, no welder’s

helper was at hand, and he, himself, attempted to lift

and move the oxygen bottle. In performing this task,

plaintiff so strained himself that he sustained traumatic

thrombosed hemorrhoids, a painful and disabling injury.

10. The failure of defendant to maintain an adequately

staffed vessel was a breach of its nondelegable duty to

maintain a seaworthy vessel, for it is essential that a con-

struction vessel such as the “Lay Barge 27” have on board

at all times a crew that is qualified, both in skills and

in numbers, to do the job at hand. “Lay Barge 27” was

unseaworthy at the time of plaintiff’s injury, in a manner

that caused plaintiff's injury.

11. Plaintiff exercised his duties as a seaman properly

on the occasion in question, and he was not guilty of

contributory negligence.

12. April 1, 1976, was the last day plaintiff was

aboard “Lay Barge 27” for the purpose of working.

13. The plaintiff left the barge on April 1, 1976, and

sought medical attention from Dr. J. Stuyck, a physician

in Antwerp, Belgium, to whom plaintiff was referred by

a medic in defendant’s employ. He was treated conserva-

tively with local anesthetics and other prescriptions. He

continued to have difficulty with his hemorrhoids, and on

April 2, 1976, he was admitted to the Ziekenhuis Vesalius

Hospital in Antwerp. An emergency hemorrhoidectomy

was performed on plaintiff at the hospital on the evening

of April 3, 1976. Plaintiff remained in the hospital until

shortly before noon on April 5, 1976. Before and after

the operation, plaintiff suffered severe physical pain and

mental agony.

14. From the hospital, plaintiff went by a taxi directly

to defendant’s office in Antwerp, where he met and spoke

with Jesse Williams, a welding superintendent. Williams

was the supervisor for all of the welder foremen and pipe-

line welders who worked for defendant in the North Sea

and was permanently stationed at the shore-based Ant-

werp office.

15. When plaintiff presented himself at defendant’s

office, he had with him and presented a “not fit for duty”

slip given to him by the physician who had discharged

him from the hospital. Williams refused to acknowledge

that plaintiff's injury aboard the “Lay Barge 27” was

work related, denied that defendant was liable for plain-

tiffs medical and hospital expenses, maintenance or un-

earned wages, and declined to furnish plaintiff transporta-

tion from Antwerp, Belgium, to his home in Houston,

Texas. Such conduct of Williams, which was in the course

and scope of his employment, constituted arbitrary, un-

reasonable, callous and willful disregard for plaintiff's

rights by defendant.

16. Plaintiff was discharged from “Lay Barge 27” and

from defendant's employ as of April 1, 1976. At the time

of his discharge, plaintiff was incapacitated to work by

reason of the injuries he received on board the “Lay

Barge 27” on that date. Although plaintiff appeared and

demanded his wages from the defendant after the date

of his dis-aarge, defendant failed to pay plaintiff his

earned wages, unearned wages, maintenance and cure,

repatriation expense, and the value of his lost personal

effects, as above mentioned.

17. Plaintiff left Antwerp, Belgium, on April 5, 1976,

and arrived in Houston, Texas, on April 6, 1976. He was

examined by Ernest Max, M.D., a colon and rectal sur-

geon, in Houston, Texas, on April 6, 14, and 28, 1976.

On April 28, 1976, Dr. Max signed a written statement

that plaintiff could resume work on May 3, 1976. Plain-

tiff was fit for duty on May 3, 1976; the parties have so

stipulated. He had reached maximum medical recovery

by that time.

18. Plaintiff was disabled for a period beginning April

1, 1976, and ending May 3, 1976. Plaintiff is due main-

tenance for thirty-two days. The parties have stipulated

to a rate of $15.00 per day as maintenance. Such stipu-

lation is reasonable and the rate is appropriate. The

' parties have also stipulated that plaintiff paid $200.00

as medical expenses in Antwerp and Houston. Defendant

has paid for all other medical expenses of plaintiff from

this injury.

19. Plaintiff's employment agreement with defendant

provided that defendant would deduct $137.50 from each

of the employee’s first four pay checks to provide trans-

portation funds to plaintiff's home, should the employee

voluntarily terminate his employment prior to satisfactory

completion. Defendant deducted and retained three pay-

ments of $137.50 each, a total of $412.50. from the three

bi-weekly checks received by the plaintiff during March

and April of 1976. When plaintiff left Antwerp, Belgium,

for Houston, Texas, he was not given the money for re-

patriation expense which had been deducted and retained

by the defendant, but, instead, was required to pay his

own expenses home.

20. Defendant retained $412.50 earned wages due to

plaintiff, in addition to refusing to reimburse plaintiff for

his out-of-pocket expenses incurred in returning home.

Although he has repeatedly demanded to be reimbursed

for his return expenses incurred, his demand has been

ignored by defendant. Defendant’s failure to pay plain-

tiff the $412.50 in earned wages was without sufficient

cause.

21. Plaintiff has exercised due diligence to attempt to

collect earned and unearned wages, maintenance and cure,

repatriation expenses, and the value of lost personal

effects which is due him. Defendant did not begin a

thorough investigation of plaintiff's claim until September

30, 1976. The investigation was not made with reason-

able diligence. Defendant’s failure to pay maintenance

and cure, repatriation expenses, the cost of his personal

effects, and earned and unearned wages to plaintiff con-

stituted arbitrary, unreasonable, callous, and willful dis-

regard of plaintiff's rights. Defendant’s recalcitrance in

failing properly to pay plaintiff's claim has forced plain-

tiff “to hire a lawyer and go to court to get what was

plainly owed him under laws that are centuries old.”

Vaughan v. Atkinson, 369 U.S. 527, 531 (1963). De-

fendant should have made the payments voluntarily and

without delay.

22. During the period from April 2, 1976, through

April 7, 1976, inclusive, defendant paid plaintiff $511.02.

23. The evidence disclosed that, on some occasions

when employees of defendant are required to leave the

barge on acount of illness or for personal reasons, they

are permitted by defendant to terminate their employment

and receive (1) their contractual annual bonus of ten

percent on straight time pay earned to the date of termi-

nation and (2) their contract completion bonus of sixteen

and two-thirds percent of earned straight time pay. The

terms of the contract provide that such bonuses are not

payable unless the employment term is completed by the

employee. Defendant did not offer, and plaintiff did not

request, a “job completion” termination of plaintiff's em-

ployment contract.

24. Plaintiff began working as a welder for Viking

Offshore Services on May 5, 1976.

25. The pipeline project that “Lay Barge 27” was

assigned to perform was completed by September 15,

1976. Plaintiff's employment with defendant would have

been terminated on or before September 15, 1976, had

he not become ill and been discharged by defendant.

26. Plaintiff was employed by defendant’s parent com-

pany, J. Ray McDermott & Co., Inc., on October 7, 1976,

as a pipeline welder working in the Gulf of Mexico, at

the rate of $10.75 an hour.

27. The parties have stipulated that plaintiff's air fare

from Antwerp, Belgium, to Houston, Texas was $600.00.

They have also stipulated that the value of plaintiff's lost

personal effects was $1,595.00.

28. For the pain and suffering which plaintiff endured

by reason of his injuries referred to above, plaintiff is

entitled to damages in the amount of $5,000.00.

CONCLUSIONS OF LAW

1. The court has jurisdiction over the parties and the

subject matter of this action.

2. Plaintiff's first cause of action is brought as the

result of his personal injuries received while in the service

of “Lay Barge 27”. As a seaman injured in the service

of his vessel, “Lay Barge 27”, plaintiff is entitled to all

of the protections and remedies afforded by the Jones

Act, 46 U.S.C. § 688, and the general maritime law of

the United States.

3. As his second cause of action, plaintiff seeks to

recover earned and unearned wages due and unpaid,

maintenance and cure, the value of personal effects left

on the barge, repatriation expenses, and penalty wages

under 46 U.S.C. § 596.

4. At all times material to this action, “Lay Barge

27” was a vessel in navigation, and plaintiff was a mem-

ber of its crew.

5. An absolute and non-delegable duty is imposed on

the owner of a vessel in navigation to furnish a vessel

reasonably safe and fit for its intended purpose. E.g.,

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960);

Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (1946);

Webb v. Dresser Industries, 536 F.2d 603 (5th Cir.

1976), cert. denied, 429 U.S. 1121 (1977); White v.

Rimrock Tidelands, Inc., 414 F.2d 1336 (Sth Cir. 1969),

The. shipowner’s duty to maintain a seaworthy vessel is

absolute, and a cause of action for breach of that duty

arises even though the unseaworthy condition was un-

known to the owner. E.g., Webb v. Dresser Industries,

supra. The obligation includes the duty to provide a crew

fit in numbers, ability and disposition. See, e.g., Usner v.

Luchenback Overseas Corporation, 400 U.S. 494 (1971);

_Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S.

336 (1955); Clevenger v. Star Fish & Oyster Co., 325

F.2d 397 (1963). The shipowner is absolutely liable for

injuries to a seaman caused by an unseaworthy condition

on the vessel. E.g., Mitchell v. Trawler Racer, Inc., supra.

It does not matter that the condition of unseaworthiness

may be transitory. Mitchell v. Trawler Racer, Inc., supra.

6. The accident which occurred on April 1, 1976,

and which forms the basis of plaintiff's claim, was proxi-

mately caused by the failure of the defendant to maintain

a crew competent in both numbers and skill on board

“Lay Barge 27” at all times. This failure on the part of

the defendant was a breach of the shipowner’s absolute

and nondelegable duty to maintain a vessel fit for its in-

tended purpose at all times and rendered “Lay Barge 27”

unseaworthy.

7. Plaintiff was forced to leave the service of the

vessel “Lay Barge 27” solely because of the disability

caused by his injuries from the accident of April 1, 1976.

As the result of the personal injuries plaintiff received

on April 1, 1976, he suffered physical pain and mental

anguish, for which he is entitled to be compensated by

defendant in the amount of $5,000.00.

8. A seaman is entitled to recover maintenance and

cure whenever he is disabled in the service of the ship.

The Osceola, 189 U.S. 158 (1903). The obligation to

provide maintenance and cure is an incident of the em-

ployment contract and extends during the period when

the seaman is incapacitated to do a seaman’s work and

continues until he reaches maximum medical recovery.

Calmar Steamship Corp. v. Taylor, 303 U.S. 525 (1938);

Vaughan v. Atkinson, 369 U.S. 527 (1962). Plaintiff is

entitled to recover maintenance from April 1, 1976, the

date of plaintiff's injury and the date plaintiff left “Lay

Barge 27”, through May 3, 1976, the day he was found

fit for duty and had reached maximum medical recovery,

a period of thirty-two days, at the rate of $15.00 a day.

The total maintenance due plaintiff is $480.00. The plain-

tiff is also entitled to recover the sum of $200.00 that he

paid as medical expenses in Belgium and the United

States.

9. A seaman disabled in the service of the ship is

entitled to recover wages, usually referred to as “lost

wages” or “unearned wages” to the end of the voyage,

The Osceola, 189 U.S. 158 (1903), or for the period

of time contemplated by his employment contract or until

he has reached the maximum medical cure and can work,

whichever occurs first. Vickers v. Tumey, 290 F.2d 426

(5th Cir. 1961); Martinez v. Star Fish & Oyster Co.,

Inc., 386 F. Supp. 560 (S.D. Ala. 1974); Cassidy v.

Steamship American Falcon, 280 F. Supp. 663 (E.D.

La. 1968); Warren v. U. S., 75 F. Supp. 836 (D. Mass.

1948). Plaintiff is entitled to recover: unearned wages

from April 2 (the first day after his injury for which he

was not paid full wages) until May 3, 1976 (the date he

was found fit for duty by Dr. Max), a period of thirty-

one days. Unearned wages shall be calculated at a rate

of $101.20 per day, i.e., his straight-time wage as a pipe-

line welder, plus one-thirtieth of his expatriation bonus.

The $511.02 paid piaintiff during the period April 2,

1976, to April 7, 1976, shall be deducted from the un-

earned wages due plaintiff. The total unearned wages

due plaintiff, after deduction, is $2,626.18.

10. Plaintiff is entitled to recover all earned wages

through the date of his discharge, i.e., the $412.50 with-

held from plaintiff's wages to cover return travel expenses.

11. Defendant’s failure to promptly pay plaintiff the

$412.50 withheld from his earned wages constitutes a

withholding of wages without sufficient cause, which is

prohibited by 46 U.S.C. § 596. Plaintiff is entitled to

recover a penalty from defendant for the wrongful with-

holding of earned wages pursuant to such statute. The

period during which the penalty runs is to be determined

by the sound discretion of the district court and depends

on the equities of the case. Carribean Federation Lines

v. Dahl, 315 F.2d 370 (Sth Cir.), cert. denied, 375 U.S.

831 (1963); Ventiadis v. C. J. Thidobeaux & Co., 295

F. Supp. 135 (S.D. Tex. 1968). Accord, Prindes v. S. S.

African Pilgrim, 266 F.2d 125 (4th Cir. 1959). Contra,

Escobar v. S. §. Washington Trader, 503 F.2d 271 (9th

Cir. 1974), vacated and remanded on other grounds, 423

U.S. 1070 (1976); Swain v. Isthmian Lines, Inc., 360

F.2d 81 (3d Cir. 1966). The aim of 46 U.S.C. § 596

is to protect seamen from the harsh consequences of

arbitrary and unscrupulous actions of their employers.

American Foreign Steamship Co. v. Matise, 423 U.S. 150

(1975); Collie v. Ferguson, 281 U.S. 52 (1930). On

the facts of this case, the appropriate period for imposi-

tion of the statutory penalty is from the date of discharge

through the date of plaintiff's reemployment, i.e., from

April 1, 1976, to May 5, 1976, a period of thirty-four

days. The wage rate to be used for computing the penalty

is that for straight-time wage as a pipeline welder, plus

one-thirtieth of the expatriation bonus, i.e., $101.20. The

penalty due plaintiff from defendant is $202.40 per day

for thirty-four days, a total of $6,881.60.

12. Plaintiff is entitled to recover the sum of $600.00

he expended for air fare from Antwerp, Belgium, to

Houston, Texas, after he was discharged. He is also en-

titled to recover the sum of $1,595.00, to reimburse him

for personal effects left on board “Lay Barge 27” when

he was discharged.

13. The award of prejudgment interest in an admiralty

action is addressed to the sound discretion of the district

court. E.g., Scola v. Boat Frances R., Inc,, No. 79-1169

(1st Cir. March 25, 1980); Howell v. Marmpegaso Com-

pania Naviera, 578 F.2d 87 (Sth Cir. 1978); Harrison v.

Flota Mercante Grancolombiana, S.A., 577 F.2d 968 (Sth

Cir. 1978); Brown v. Aggie & Millie, Inc., 485 F.2d

1293 (Sth Cir. 1973). See generally, Annot., 34 A.L.R.

Fed. 126 (1977). An award of prejudgment interest is

the rule and should be denied only under certain peculiar

circumstances not present in this case. E.g., McCormack

v. Noble Drilling Corp., 608 F.2d 169 (Sth Cir. 1979);

Dow Chemical Co. v. M/V Gulf Seas, 593 F.2d 613

(Sth Cir. 1979). Although a federal court sitting in ad-

miralty is not bound by the interest rate set by state

law, consideration of it is proper. Sabine Towing & Trans-

portation Co., Inc. v. Zapata Ugland Drilling, Inc., 553

F.2d 489 (Sth Cir.), cert. denied, 434 U.S. 855 (1977);

Geotechnical Corporation of Delaware v. Pure Oil Co.,

214 F.2d 476 (Sth Cir. 1954). The judgment rate of

interest in Texas is nine percentum per annum. TEX.

REV. CIV. STAT. ANN. art. 5069-1.05 (Vernon 1971),

as amended. Neither plaintiff nor defendant presented

any evidence justifying a different rate of interest. Under

the circumstances of this case, plaintiff is entitled to pre-

judgment interest at the rate of nine percentum per annum

from April 1, 1976, the date of plaintiff’s injury and dis-

charge, to the date of judgment on $5,913.68, the total

recovery for maintenance, cure, repatriation expense, the

cost of lost personal effects and earned and unearned

wages. The prejudgment interest due plaintiff totals

$2,506.89.

14. Because defendant’s failure to pay maintenance,

cure, repatriation expenses, the cost of lost personal ef-

fects, and earned and unearned wages was the result of

recalcitrant conduct and arbitrary, unreasonable, callous,

willful, and wanton disregard of plaintiff's rights, and be-

cause of defendant’s failure to investigate plaintiff's claim

with due diligence, plaintiff is entitled to attorney’s fees.

Vaughan v. Atkinson, 369 U.S. 527 (1962); Lirette v.

K & B Boat Rentals, Inc., 579 F.2d 968 (Sth Cir. 1978).

An attorney’s fee of forty per centum of these items of

recovery, including plus prejudgment interest (which is

the rate provided by plaintiff's agreement with counsel),

is reasonable under the circumstances. The amount of the

attorney’s fees due plaintiff is $3,368.23.

15. Because piaintiff did not intentionally misrepresent

or conceal any material medical facts the disclosure of

which was plainly desired, he is not barred from recovery

by his failure to disclose his prior history of hemorrhoids.

McCorpen v. Central Gulf Steamship Corp., 396 F.2d

547 (Sth Cir.), cert. denied, 393 U.S. 894 (1968).

16. Costs shall be taxed against defendant.

SIGNED and ENTERED this 6th day of May, 1980.

/s/ WM. WAYNE JUSTICE

Chief Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

NO. S-78-26-CA

DANNY L. GRIFFIN

OCEANIC CONTRACTORS, INC.

JUDGMENT

Based upon the fiindings of fact and conclusions of

law this day entered in the above-entitled and numbered

civil action, it is

ORDERED, ADJUDGED, and DECREED that plain-

tiff, Danny L. Griffin, shal! be, and he is hereby, awarded

judgment against the defendant, Oceanic Contractors,

Inc., in the following amounts:

(1) $5,913.68, as recovery for maintenance and cure,

earned and unearned wages, repatriation expense and the

value of lost personal effects;

(2) $2,506.89, as prejudgment interest on the recovery

for maintenance and cure, earned and unearned wages,

repatriation expense, and the value of lost personal effects;

(3) $3,368.23, as attorney’s fees for the recovery for

maintenance and cure, earned and unearned wages, re-

patriation expense and prejudgment interest; and

(4) $11,881.60, as recovery for pain and suffering and

penalty wages.

It is further

ORDERED, ADJUDGED, and DECREED that the

total amount of this judgment, including attorney’s fees,

i.e., $23,670.40, shall bear interest at the rate of nine

percentum (9%) per annum from this date unti! paid,

and that defendant pay all costs of court.

SIGNED and ENTERED this 6th day of May, 1980.

/s/ WM. WAYNE JUSTICE

Chief Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

C. A. NO. A-78-26-CA

DANNY L. GRIFFIN,

Plaintiff,

vs.

OCEANIC CONTRACTORS, INC.,

Defendant.

SATISFACTION OF JUDGMENT

Payment in full by defendant, Oceanic Contractors,

Inc., of all amounts due therefrom under the final judg-

ment entered herein on the 7th day of May, 1980, is

hereby acknowledged, and satisfaction full and complete

and acquittance in full, including interest, is hereby given,

except as to costs of court and such additional sums, if

any, that may be awarded to the plaintiff by the United

States Court of Appeals for the Fifth Circuit or the

Supreme Court of the United States.

DATED at Houston, Texas, this 17th day of September,

1980.

/s/ Danny L. Griffin

DANNY L. GRIFFIN

Plaintiff

FRIEDMAN & CHAFFIN

By /s/ Robert A. Chain

Attorneys for Plaintiff,

Danny L. Griffin

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 80-1599

Summary Calendar

D. C. Docket No. CA-S-78-26

DANNY L. GRIFFIN,

Plaintiff-Appellant,

versus

OCEANIC CONTRACTORS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

Before BROWN, POLITZ and TATE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the East-

ern District of Texas, and was taken under submission

by the Court upon the record and briefs on file, pursuant

to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed.

June 17. 1981

Issued As Mandate: Jul. 9, 1981

JUDGMENT AND OPINION OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT A

No. 80-1599

Summary Calendar

DANNY L. GRIFFIN,

Plaintiff-Appellant,

versus

OCEANIC CONTRACTORS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Eastern District of Texas

( JUNE 17, 1981 )

Before BROWN, POLITZ and TATE, Circuit Judges.

TATE, Circuit Judge.

The plaintiff, Danny Griffin, was injured on a vessel

while in the employ of the defendant, Oceanic Con-

tractors, Inc. He brought suit against his employer seek-

ing damages under the Jones Act, 46 U.S.C. § 688, the

general maritime law of the United States, and for penalty

wages under 46 U.S.C. § 596.’

1. 46 U.S.C. § 596 provides:

The master or owner of any vessel making coasting

ee cee ape eee we Se cee Se

termination of the agreement under which he was shipped, or

After a judge trial on the merits, the trial court found

that Griffin’s injury was caused by an unseaworthy con-

dition of the vessel, and accordingly awarded him an

amount totalling $23,670.40. On appeal, Griffin contends

that this award was insufficient due to the trial court’s

error (1) for failure to award him lost wages for his

entire contractual term, (2) for failure to include any

bonus and/or overtime pay in the computation of earned

and/or unearned wages, and (3) for failure to properly

apply the penalty wage statute, 46 U.S.C. § 596.

Facts

Plaintiff Griffin signed an employment contract on

February 18, 1976, with the defendant, Oceanic Con-

tractors, Inc. [hereinafter “Oceanic”], agreeing to work

as a senior pipeline welder on defendant’s vessels operat-

ing in the North Sea. The contract stipulated that his

employment would commence “on the date of [his] de-

parture and will continue . . . until December 15, 1976

the time such seaman is discharged, whichever first happens;

case of vessels making foreign voyages, or from a port

Atlantic to a port on the Pacific, or vice versa, within

BRE

rfl

{

or until Oceanic’s 1976 pipeline committal in North Sea

is fulfilled whichever shall occur first.”

Griffin shortly thereafter flew to Antwerp, Belgium,

and reported to the vessel, Lay Barge 27, which was tied

up in the harbor for winter repairs. On April 1, 1976,

in getting the barge ready to put to sea, Griffin developed

travmatic thrombosed hemorrhoids when he attempted to

move an empty oxygen bottle by himself.

On April 3, 1976, emergency surgery was performed

on Griffin at a hospital in Antwerp, where he remained

until April 5, 1976. On April 6, 1976, he flew back to

his home in Houston, Texas, and was there examined by

Dr. Ernest Max, a colon and rectal surgeon, on April 6,

14 and 28, 1976. Griffin reached maximum medical re-

covery and was found fit to return to duty on May 3,

1976.

Griffin brought suit against Oceanic under the Jones

Act, general maritime law, and 46 U.S.C. § 596, for its

fail re to pay maintenance and cure, repatriation ex-

penses, and earned and unearned wages. The trial court

found that the vessel was unseaworthy due to an insuf-

ficient number of the crew members, and that Griffin’s

injury resulted from this unseaworthy condition (because

he had no aid in moving the oxygen bottle.)

The trial court awarded the damages totalling $23,-

670.40 to Griffin, as follows: (1) $5,913.68, as recovery

for maintenance and cure, earned and unearned wages, re-

patriation expense and the value of lost personal effects;

(2) $2,506.89, as prejudgment interest on the recovery

for maintenance and cure, earned and unearned wages,

repatriation expense, and the value of lost personal ef-

fects; (3) $3,368.23, as attorney’s fees for the recovery

for maintenance and cure, earned and unearned wages,

repatriation expense and prejudgment interest; (4) $5,-

000.00, as recovery for pain and suffering and penalty

wages; and (5) $6,881.60 as penalty wages.

Griffin’s appeal questions only the refusal of the trial

court to allow him full wages (straight time, overtime,

and bonuses) for the entire period of his contractual

employment (the trial court limited the wage-recovery to

the period of disability), and its failure to award him the

full statutory penalty, 46 U.S.C. § 596 (quoted at note

1), of double-daily wages for each day until the time

of actual payment in 1980 of the unpaid wages earned

in 1976 (the trial court awarded hin double the daily

rate of straight time wages for the 34-day period of un-

employment during 1976, or a total of $6,881.60).

The trial court allowed Griffin to recover unearned

wages from the day after his injury, April 2, to the date

he was found fit for duty by Dr. Max, May 3, 1976. On

appeal, Griffin urges that the trial court committed an

error of law in not awarding him unearned wages until

the ending date of his contractual period of employment,

which in this instance was September 15, 1976, the date

on which Oceanic’s pipelaying season was completed in

the North Sea.

Griffin advances three separate theories upon which

he should recover unearned wages from April 1 to Sep-

tember 15: (1) under the general maritime law (as part

of his claim for maintenance, wages, and cure); (2) as

general damages under the Jones Act; and (3) under a

breach of contract theory.

We find all three to be inapplicable to the facts before

us.

The right of an injured seaman to recover unearned

maintenance-wages-cure (M-W-C) wages under the gen-

eral maritime law of the United States until either (1)

the end of the voyage or (2) the end of the contractual

period of employment is well established. See, e.g., The

Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487 (1903);

Isthmian Lines v. Hare, 334 F.2d 521 (Sth Cir. 1964);

Vickers v. Tumey, 290 F.2d 426, 434 (Sth Cir. 1961);

Rofer v. Head & Head, Inc., 226 F.2d 927, 929 (Sth

Cir. 1955); 2 M. Norris, The Law of Seamen 17 § 544,

p. 17 (3d ed. 1970). However, if the seaman recovers

from the injury and is fit to return to duty prior to the

termination of the voyage or his contractual period, then

he is not entitled to continue to receive M-W-C wages

past that point.* See Vickers v. Tumey, supra, 290 F.2d

at 434-435; Martinez v. Star Fish and Oyster Co., 386

F.Supp. 560, 564 (S.D. Ala. 1974); Warren v. United

States, 75 F.Supp. 836, 838 (D.C. Mass. 1948).

As Griffin contends, lost wages may also form an

element of damages in a suit brought under the Jones

Act. See Vickers v. Tumey, supra, 290 F.2d at 434.

2. In Warren v. United States, 75 F. Supp. 836, 838 (D.C. Mass.

1948), the court found that a seaman was entitled to M-W-C wages

“until the time the seaman is not only well but able to find suitable

employment.” For purposes of the present case, we pretermit discus-

sion of whether a seaman has to be both fit for duty and able to

find suitable employment in order for M-W-C wages to be terminated,

for here the trial court found as a fact that Griffin had accepted new

Sieae. on May 5, 1976, just two days after he was pronounced

or h

Nevertheless, even under the Jones Act (under which a

plaintiff may recover for loss of future earnings after the

termination of voyage or contract), Griffin is not allowed

to recover for lost wages past May 3, 1976, because he

was found to have fully recovered as of that date and

was found to have incurred no diminution of future earn-

ings as a result of his injury. Any decrease in earnings

after May 3 was due to Griffin’s failure to return to

work for Oceanic, not from his injury, since Oceanic

(see below) held his position open for him.

Finally, Griffin contends he is due unearned wages

through September 15, 1976, because the defendant

breached his employment contract by wrongfully dis-

charging the defendant on April 1, 1976. The trial court

did indeed find that Griffin was discharged effective April

i, but it failed to state that such a discharge constituted

a breach of contract. Although notice was sent to Griffin

that his discharge was effective April 1, such notification

was not transmitted until June 2 (after unsuccessful efforts

to contact Griffin and discover when he would return to

work) (Def. Ex. 11, 12, Tr. 364-67), and the evidence

in the record establishes that Griffin’s job was held open

until at least June 1, 1976 (Def. Ex. 12), that he made

no effort to return to work for Oceanic (indeed, he ob-

tained new employment on May 5), and that Oceanic

made numerous attempts to contact Griffin for the purpose

of re-employment.°

3. The district court did not make an express finding as to the

nonbreach of contract, but under the virtually uncontradicted evi-

dence, any finding of breach would have been clearly erroneous, so

the issue may be reviewed by us without remand. See Kratzer v.

Capital Marine Supply, Inc., F.2d . (Sth Cir. 1981)

(sl. op. p. 7218, 7225, May 20, 1981).

The plaintiff also contends that the trial court erred

in not awarding him (1) bonus pay for the period prior

t. his injury and (2) bonus and overtime pay for the

period between April 2 and May 3.

We disagree. Griffin’s contract provided for (1) an

annual bonus and (2) a contract-completion bonus. The

trial court found that “the terms of the contract provide

that such bonuses are not payable unless the employment

term is completed by the employee.” Since the employ-

ment term was not completed, we do not find that the

trial court was clearly erroneous in not including a pro-

portionate amount of these bonuses in computing Griffin’s

unearned wages, either on a contract theory or as Jones

Act wage damages.

Furthermore, the district court did not include any

overtime pay for the period between April 2 and May 3.

Again, we cannot say that the district court erred. The

actual amount of overtime was uncertain, and hence any

inclusion of such would have been purely speculative.

See Martinez v. Star Fish and Oyster Co., 386 F. Supp.

at 564; Keefe v. American Pacific Steamship Co., 110

F. Supp. 853, 856 (S.D. Cal. 1953).

The district court found that Oceanic’s failure to

promptly pay $412.50 withheld from wages already earn-

ed by Griffin constituted a withholding of wages without

sufficient cause. Under 46 U.S.C. § 596, Griffin was en-

titled to recover a penalty for this wrongful withholding.

The statutory penalty requires payment of a penalty of

(twice the daily wage rate for each) to the seaman until

he is actually paid (see note 1 for statutory text), which

in his case was not until September, 1980, after the judg-

ment below. The trial court computed this penaltty, how-

ever, by doubling Griffin’s daily straight-time wage only

for the period from April 1, 1976 to May 5, 1976, the

date of his re-employment.

Griffin contends that the trial court erred in so apply-

ing the wage penalty only from April 1 through May 5,

1976, arguing that it should have been awarded for each

day during which the failure to pay continued, a period

not ending until September, 1980.

In this circuit, the duration on applying the wage pen-

alty statute (46 U.S.C. § 596) is left to the sound dis-

cretion of the district court. Caribbean Federation Lines

v. Dahl, 315 F.2d 370, 374 (Sth Cir.), cert. den., 375

U.S. 831 (1963). Ventiadis v. C. J. Thibodeaux & Co.,

295 F.Supp. 135, 138 (D.C. Tex. 1968).* Absent any

abuse, we do not disturb the trial court’s order.

4. The plaintiff Griffin accurately states that other circuits view

§ 596 as establishing a mandatory time period for its application.

However, the Supreme Court in American Foreign S.S. Co. v. Matise,

423 US. 150, 152 n.1, 96 S.Ct. 410, 312 n.1 (1975) recently noted

this circumstance and also that the Fifth Circuit view as to the dis-

cretionary time period application is shared by a majority of circuits

that have considered the issue:

While the Third and Ninth Circuits have found that the trial

judge has no discretion in determining the amount of the penalty

under § 596, Swain v. Isthmian Lines, Inc., 360 F.2d 81 (CA 3

1966); Escobar v. S.S. Washington Trader, 503 F.2d 271 (CA 9

1974); cert. pending sub nom. American Trading Transp. Co. v.

Escobar, No. 74-1184, the First, Second, Fourth, and Fifth Cir-

cuits have concluded that the length of time to which the penalty

hence its amount—is subject to the discretion of

the District Court. Mavromatis v. United Greek Shipowners

Corp., 179 F.2d 310 (CA 1 1950); Forster v. Oro Navigation

Co., 228 F.2d 319 (CA 2 1955), aff’g 128 F. Supp. 113 (S.D.

Here, after considering the equities involved, the trial

court granted Griffin penalty wages only for the period

during which he was actually not employed. We are un-

able to state that the district court abused its discretion

by so doing.

Conclusion

In summation, we find that the trial court neither

abused its discretion nor committed any error of law in

the computation of the damage award granted to plain-

tiff Griffin. We, therefore, AFFIRM the decision of the

trial court.

AFFIRMED.

N.Y. 1954); Southern Cross S.S. Co. v. Firipis, 285 F.2d 651

(CA 4 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.

2d 859 (1961); Caribbean Federation Lines v. Dahl, 315 F.2d

370 (CA § 1963).

Under the precedential rule of this circuit, until it is overruled by

en banc opinion, this panel is bound by prior circuit precedent.

PLAINTIFF’S EXHIBIT 1(a)-(f)—

EMPLOYMENT AGREEMENT

BETWEEN OCEANIC CONTRACTORS

AND DANNY L. GRIFFIN,

Dated February 18, 1976.

OCEANIC CONTRACTORS, INC.

Employment Agreement

North Sea Division

DATE: February 18, 1976 Soc. Sec. No. 454-78-1097

MR. Danny Laried Griffin Employee No. ———___

Oceanic Contractors, Inc. North Sea Division agrees to

employ you for services at North Sea as a Welder. Your

employment will begin on the date of your departure and

will continue for a period of until December 15, 1976

or until Oceanic’s 1976 pipeline committal in North Sea

is fulfilled whichever shall occur first unless your services

are sooner terminated, at a base rate of pay of:

Pipeline Welder $ 9.65 per hour

Expatriation Premium $720.00 per month

Structural Welder* $ 6.65 per hour

Expatriation Premium* $495.06 per month

In the event of accident or emergency, the Employer is

authorized to notify:

Dick Griffin Father

Name Relationship if any

Route 1, Box 44

Center, Texas 75935 (713) 598-3592

Address Telephone

The Employer assumes no duties or obligations to the

Employee, express or implied, except those that may arise

specifically out of applicable statute or iaw.

You agree by your signature, to continue in our em-

ploy for the period above set out under the terms and

conditions outlined herein.

Employee reserves the right to terminate this Agree-

ment at will without notice for any reason other than

completion or cessation of the job, work or project to

which the employee is assigned. In such cases of comple-

tion of job, work, or project, Employer will give thirty

(30) days written notice of termination where practicable.

All compensation and benefits provided by the Employer

shall cease at the time of termination of this employment

agreement, except as may be otherwise provided or agreed

upon.

I UNDERSTAND AND AGREE TO THE ITEMS

ON THE ATTACHED PAGES

By: /s/ DAN GRIFFIN _ By: Signature Illegible

SIGNATURE OF EMPLOYEE

2-18-76

DATE

Date of Departure March 7, 1976 Date of Return____

ATTACHMENTS: *Structural rate includes,

Pages 2, 3, NS4, HS, but is not limited to, all

NS6 winter rig up and main-

tenance work.

PROCESSING

You agree to have completed the following items prior to

your departure from the United States:

1. Procurement of a valid passport from the United

States of America.

2. A Visa, Travel, or Work Permit.

3. A physical examination to certify your fitness to per-

form the duties to which you will be assigned.

4. The Employee will be administered to inoculations

as required per geographical area. The Employee

Relations Department will maintain an updated list-

ing of required inoculations.

These should be recorded on an “International Cer-

tificate of Vaccination” iorm. An acceptable certi-

ficate may be provided attesting to effective immu-

nization in lieu of taking the inoculations.

You will be assisted in securing the necessary passport,

visas, inoculations and other necessary documents, and

you shail be paid one day’s pay of eight (8) hours for

each actual day of processing as determined by the Em-

ployer. This processing pay will be at your base rate.

HOW YOU WILL BE PAID

You will be paid on a semi-monthly basis by deposit of

check in United States of America currency in a United

States Bank, which is to be designated by you. If desired,

arrangements can be made for payment of salary in two

(2) checks, one of which may be deposited in your des-

ignated United States bank and the other received by

you. You will make arrangements prior to departure from

the United States or with the Employer’s office manager

in the work area.

FAMILY STATUS

You enter into this Agreement with the understanding

that your employment outside the continental limits of

the United States will be on a single status only. It is

intended that your family remain in the United States.

You agree this Agreement is between the Employer and

you, and that your family is not a party to this Agree-

ment, and that the movement, safety and well-being of

your family is your total responsibility and is not shared

by the Employer in any respect.

GROUP HOSPITALIZATION, MEDICAL AND

LIFE INSURANCE PLAN

Provided you now are a participat.t or will meet the re-

quirements of the Plan as administered by J. Ray Mc-

Dermott & Co., Inc., you may continue or will participate

in the Plan in accordance with the provisions of the Plan.

Deductions for your portion of the premium will be made

once each month and shall be in accordance with the

amount as specified in the Plan.

WORKMEN’S COMPENSATION

The Employer shall provide, through insurance and other

arrangements, for payment of industrial accident compen-

sation and benefits to you, in accordance with the laws

of the country where you are working, the compensation

and benefits being at least equal to the Workmen’s Com-

pensation Law of the State of Louisiana.

PHYSICAL EXAMINATION

You agree to submit to a physical examination prior to

leaving your place of overseas employment or upon ter-

mination of your employment, by a physician selected by

the Employer.

PERMANENT ADDRESS

The address of the person to be notified in the event of

an accident or emergency as shown on the first page of

this Employment Agreement shall be considered as your

permanent address or the address of the person in whose

care the Employer may communicate with you. In the

event of your death while outside the continental limits

of the United States during the period of this service

under this Agreement, the Employer shall attempt to

communicate with the person at the given address, and

in the event no directions are received from such person

within a reasonable time, or in the event you have left

no written instructions with the Employer concerning the

disposition of your body or personal effects, you authorize

the Employer to make disposition of your body according

to the law where you are employed at the time of your

death and to return your personal effects to the Executor

or Administrator of your estate, or to the person named

ai the permanent address as appears to best expeditiously

handle such matters.

DEDUCTIONS—INCOME, F.I.C. A. AND

OTHER TAXES

There will be withheld from your pay the amount which

in the opinion of counsel for the Employer is required

or may be required for the payment of income taxes

under the laws of any country in which you may work.

Such amount will be paid over to such Governments to

the extent required for the payment of such taxes. The

balance, if any, will be paid to you when in the opinion

of counsel for Employer no further payments on account

of such taxes are, or may be, required.

The Company has elected not to participate in the Fed-

eral Income Contribution Act for personnel on foreign

assignment. Accordingly, the Company will not make

F.I.C. A. deductions from or F.I.C. A. payments, on

your earnings while you are on foreign assignment.

Under no circumstances will the Company be liable for

any taxes for which you may become liable while you

are on foreign assignment.

TRANSPORTATION

The Employer will furnish tourist class air transportation

for you from your home location to your work site. Sub-

ject to the conditions set forth herein, return transporta-

tion of the same class will be furnished if you proceed

directly to the United States upon leaving our employ-

ment.

You will be permitted to take with you up to forty-four

(44) pounds of luggage which includes the weight of the

container. In addition, you will be reimbursed for actual

expenses not to exceed one hundred twenty eight dollars

($128.00) for baggage in excess for forty-four (44)

pounds. You will be responsible for paying the excess

baggage amount initially, and in order to receive the re-

imbursement, you must present the receipt for such pay-

ment to the barge clerk at the North Sea location.

If your services are terminated for cause or if you should

quit your job prior to the date of termination of this

Employment Agreement, you will be charged with your

return transportation. The Employer will have the option

of withholding One Hundred Thirty Seven and 50/100

dollars ($137.50) from each of your first four (4) full

pay periods as a cash deposit for the payment of your

return transportation in the event you should become

obligated for its payment. If the cost of return transpor-

tation is less than Five Hundred Fifty and 00/100

($550.00) dollars the balance will be given to you with

your final pay. If the cost of the return transportation

is greater than Five Hundred Fifty and 00/100 ($550.00)

dollars, the excess will be deducted from your final wage

payment and/or any other monies due you. The Five

Hundred Fifty and 00/100 ($550.00) dollars will be in-

cluded in your final check, if you are not responsible for

your return transportation.

DISCLOSURE OF INFORMATION

Employee hereby agrees that he will not, except with the

prior written consent of Employer, make directly or in-

directly any statements publicly whether to the press or

in books, magazines, and periodicals or by advertisement

or by radio, television or film or by any other medium

with respect to matters relative to the operations of the

Company with whom the Employer is working, or with

respect to matters of a political nature which might impair

the relations of the Employer, Employer’s customers or

subcontractors, or any other companies with whom the

Employee is working or with any governments in the

local area.

IMMEDIATE INCOME

You will receive your base rate of pay for eight (8)

hours per day, seven (7) days per week when you are

available for work. Any time worked in excess of eight

(8) hours in one day shall be paid at one and one-half

(1%) times the hourly base rate. You agree to work

such hours as may be assigned by the Employer. You

will be paid from the date of your departure from the

United States through the date fixed by the Employer for

your departure from your work site, provided however,

your pay will terminate immediately in the event of your

voluntary quit or discharge for cause. No pay will be

made for any day of absence from work unless excused

by the Employer. If at any time during the course of

your employment you are absent from work on any

given day through your willful neglect, the Employer, at

its option, may elect not to pay you the normal day’s

pay for this unauthorized absence. This type of unauthor-

ized absence may be considered as cause for termination

of your contract by Employer.

EXPATRIATION PREMIUM

You will receive an Expatriation Premium as shown on

page one (1) of this Contract when you are available

for work.

ANNUAL BONUS

You will receive an Annual Bonus of ten (10%) per

cent on the total straight time portion of your pay, which

is total hours worked times base rate of pay. This bonus

is payable on earnings through November 30 and will

be paid some time between December 1 and December

15, or upon completion of the Employment Agreement,

whichever comes first.

CONTRACT-COMPLETION BONUS

A Contract-Completion Bonus of sixteen and two-thirds

(16%4%) per cent on the total straight time portion of

your pay will be paid on completion of this Agreement.

VACATION

You will be entitled to a credit of two and one-half

(2%) calendar days of vacation for each full calendar

month of service rendered. Your vacation time will be

paid on the basis of eight (8) hours per day at the base

hourly rate and you agree to take your vacation upon

satisfactory completion of your work. You will assume

the responsibility regarding the use of vacation time to

maintain your tax status under United States Federal

Income Tax Laws.

TERMINATION BY DISCHARGE, ABANDON-

MENT OF WORK, OR RESIGNATION

If your services are terminated by reason of discharge for

cause, abandonment of your work, or resignation, no va-

cation allowance, annual bonus, or contract-completion

bonus is earned and none will be paid. If your employ-

ment is terminated pursuant to the thirty (30) day notice

provision hereof these bonuses will be paid to date of

termination on the basis of earnings and time of employ-

ment to such date.

TIME OFF

You will be allowed five (5) days off each month of

employment under this Agreement. Depending upon the

work schedule and the necessity of maintaining continuity

of operations at the job site, the Employer may elect for

you to continue working without time off for a reasonable

period of time. Should the Employer elect that you work,

you will be paid an additional eight (8) hours per day

at your straight time rate with all applicable bonuses for

each day off not allowed; provided, if the Employer re-

quires you to work your scheduled time off, it shall be

your responsibility to see that your supervisor prepares

and signs the time ticket for the additional hours given

for working time off. This signed time ticket must then

be submitted by your supervisor to the respective regional

administrative office or you will not be entitled to pay

for working your time off. The aforementioned five (5)

days include travel time to and from the work site. You

will not be paid for any air transportation unless you

actually take time off and these expenses are incurred.

You cannot accumulate time off; therefore, you must take

your time off when scheduled by the Employer.

During such days of time off the job taken, the employer

will provide you with a hotel room or other accommoda-

tions, six dollars ($6.00) per day for meals and trans-

portation to said accommodations, or at the employer’s

option, pay you twenty dollars ($20.00) per day for a

maximum of five days, to cover all of these expenses

while you are on time off. The above payments and

benefits are payable only if and when you take time off.

When you leave the work area during any time off period,

the Employer shall have no responsibility for you and

shall have no liability for an injury or illness suffered by

you from the time of your departure from the work area

until you return.

While on time off, you will be paid for eight (8) hours

per day at your straight time rate.

PLAINTIFF'S EXHIBIT 29—-LETTER FROM

MR. GRIFFIN TO MR. GOLLER

DATED NOVEMBER 17, 1978

17 November 1978

Mr. Ted Goller

Fulbright & Jaworski

Bank of the Southwest Bidg.

Houston, TX 77002

Re: Dan Griffin vs. J. Ray McDermott, et al

Dear Ted:

Although we have yet to compile all of the information

and documents needed to give this case a 100% accurate

analysis I do believe that the evaluation made below will

prove to be accurate. The reason I am writing you with

this evaluation and demand is because of the many dif-

ferent elements of damages, statutory and common law,

involved with this case. Although it is a rather bizarre

situation the case has a great deal of potential for my

client with a corresponding amount of exposure for your

clients. Virtually every element of damage found in mari-

time personal injury cases is potentially present in this

case. In particular, the potential for a large award of

penalty wages cannot be ignored.

Facts:

Dan Griffin suffered an injury on approximately March

31, 1976, which required hemorrhoid surgery on approx-

imately April 2, 1976. The condition of Mr. Griffin al-

though aggravated by heavy lifting and straining all dur-

ing March of 1976 was finally climaxed by the oxygen

bottle incident which Mr. Griffin described in his depo-

sition. Acording to Mr. Griffin the “LB 27” was not prop-

erly staffed in that welders’ helpers were not furnished as

is customary in the industry. This condition would result

in an unseaworthy vessel and place liability for Mr. Grif-

fin’s injuries with your clients. Following his surgery Mr.

Griffin was released from the hospital and returned to

Houston on April 5, 1976 after contacting his supervisor

on the “LB 27” and being assured that he could leave

his belongings on the “LB 27” and return to his old job

as soon as he was physically able. Mr. Griffin was not

paid his earned wages at the time of his departure to

return home. In addition, Mr. Griffin paid all of his own

repatriation expenses, part of his own medical expenses

in Belgium and all of his United States medical expenses.

Subsequent to all of this Mr. Griffin received a telephone

call from overseas during the latter part of April, 1976

informing him that his job was no longer available, i.e.

this being the last possible date of his discharge from the

“LB 27”. At this point Mr. Griffin sought to have his

personal belongings returned to him from the “LB 27”,

to get reimbursement for travel and medical expenses and

to collect the bonus payments due him, these bonus pay-

ments would constitute earned wages, for the work he did

while on the “LB 27”. Your clients were well aware that

Mr. Griffin had become disabled while in the service of

the vessel “LB 27” and that he undoubtedly had certain

conditions coming to him. Mr. Griffin’s right to main-

tenance and cure and payment for earned wages was

totally ignored. In summary, Mr. Griffin has never re-

ceived any sort of monetary payment from your clients,

despite repeated demands whiich are evidenced in your

files, with the exception of wages due from March 15,

1976 through March 31, 1976, which were forwarded

to him by mail in Houston after his return from Belgium.

These wages should have been paid to Mr. Griffin before

his departure for Houston. All indications are that your

clients considered Mr. Griffin discharged from the “".B 27”

as of March 31, 1976 since this is the last day he ap-

peared on the payroll. Mr. Griffin subsequently remained

under the care of Dr. Max in Houston until approximately

May 6, 1976, at which time he would have returned to

the “LB 27” if his job had been reserved. As of this date

Mr. Griffin has been advised by Dr. Max that additional

corrective surgery is needed to completely alleviate the

problems brought about by his accident. This additional

corrective surgery will incapacitate Mr. Griffin for another

six to eight weeks at some time in the near future.

Elements of Compensation Due Dan Griffin:

1. Maintenance and cure from April 1, 1976 through

May 6, 1976, a total of 36 days at $8.00 per day

plus 2% years interest at 7% which is the average

federal rate over the past several years. Uncontested

amount currently due of approximately $340.00.

Attorney’s fees in an undetermined amount are

potentially due here since Mr. Griffin was unable

to collect without legal assistance.

2. Reimbursement of travel and medical expenses paid

by Mr. Griffin plus 2% years interest at 7%. Un-

contested amount currently due of approximately

$600 to $800.

3. Payment of unearned wages, no liability claim

would be required for unearned wage payments

due until the voyage ended, from April 1, 1976

through the date the “LB 27” completed the 1976

pipe laying season, somewhere around October 1,

1976, plus 2 years interest at 7%. Unearned wages

would include the following elements: Regular time

pay, overtime pay, room and board value, pipe

bonus, annual bonus of 10%, completion bonus of

16.67%, vacation pay of 40 hours straight pay for

each 25 barge days, and market value of fringe

benefits. Your clients would be entitled to an offset

for wages earned by Mr. Griffin on other offshore

jobs during the 1976 season. Total unearned wages

due Mr. Griffin would be in the range of $40,000

to $60,000 before offsets by my best estimate.

. Penalty wages are potentially due for the failure to

timely pay earned wages. These penalties are still

accruing in my opinion at the rate of approximately

$300 per day, representing two days pay for Mr.

Griffin while working on the “LB 27”, since at the

time of his discharge Mr. Griffin had earned wages

due him in the form of bonus payments which he

has continually tried to collect without success. I

can see no reason why a seaman such as Mr.

Griffin would not be entitled to penalty wages

where there is no dispute as to the fact that he

had earned wages in the form of bonuses at the

date of his discharge. Demand for these wages as

well as payment for sick time was made verbally

and in writing by Mr. Griffin with absolutely no

meaningful response by your clients. Total penalties

could conceivably be in the range of $200,000 as

of this date with continued accrual until the date

all earned wages are paid.

5. Reimbursement for loss of personal belongings with

2% years interest at 7%. Value of belongings with

interest of approximately $1,800.

6. Pain and suffering for past as well as the future

for additional corrective surgery. Two hemorrhoid

surgeries as well as the discomfort of the original

injury itseif would seem to have a value somewhere

in the range of $10,000 to $15,000.

7. Loss of earnings in the past and future. Past losses

would be equivalent to the unearned wages claim

with future losses of $3,000 to $6,000 depending

upon the averaging period used to compute average

monthly wages. Past lost wages would not be award-

ed if unearned wages were paid. However, this could

represent a separate means of collecting unearned

wages if problems with seaman status should arise.

Mr. Griffin undoubtedly would have been able to

complete the 1976 pipe laying season aboard the

“LB 27” since he was undisputably a good welder

who worked hard at his job.

8. Future medical expenses along with maintenance

and cure during the recuperation period for the

future surgery. This would amount to something

in the range of $2,000 to $3,500 with hospital

charges included.

I would suggest that you review my analysis of the case

and advise me of your feelings on the matter. Also, I

have enclosed the following documents: (1) narrative re-

ports and records of Dr. Max; (2) medical bills, overseas

and domestic, paid by Mr. Griffin; (3) earnings records

for 1974-76; (4) copy of March 15, 1976 through March

31, 1976 pay voucher; (5) correspondence between Mr.

Griffin and your clients; (6) 1974 employment contract;

(7) copies of all other expenses incurred by Mr. Griffin

as a result of the hemorrhoid condition. It would seem

appropriate to try and dispose of this case as quickly as

possible in order to halt further accumulation of penalty

wage payments.

Thank you for your consideration.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

MR. CHAFFIN: Before we start, Your Honor, I have

two sets of the exhibits here. These aze the original docu-

ments which I pass to the court and copies which I pass

to the clerk (indicating).

THE COURT: For the record, all exhibits in the final

Pre-trial Order both for the plaintiffs and the defendants

to which no objection has been made in the Final Pre-

Trial Order are now received in evidence. If there is an

objection to an exhibit that is tendered or that is listed

in the Final Pre-Trial Order, I will expect counsel will

offer the exhibit in a conventional fashion, and the ob-

jection that is expressed in the Final Pre-Trial Order must

be renewed before I will consider it. All right.

MR. Goller: Your Honor, if I may, there are two ex-

hibits in the list just tendered to which I do have ob-

jections which I have objected to in the Pre-Trial Order.

Those are Numbers 29 and 30 on Mr. Chaffin’s list.

THE COURT: You have now objected for the court,

and since this is a bench trial, I'll overrule your objection,

but it’s not my intention to consider anything that I

regard as inadmissible.

MR. CHAFFIN: Your Honor, let me say in regard to

those two exhibits. It’s the plaintiff's intention to offer

them only for the purpose of showing notice that the

penalty provisions of Title 46, U.S.C. 596 was being

invoked, and the penalty was continuing to run during

the pendency of the lawsuit. That is the purpose of offer-

ing them. I don’t offer them for any other purpose than

that, and Mr. Goller has really put that on record in

the Pre-Trial Order, and that’s the only purpose that I

have, and I agree with the objection except for that point.

MR. GOLLER: As I stated in my objection, if that’s

the sole purpose of offering them, I have stipulated in the

Pre-Trial Order when the letters were received by me

and that they did contain the notice of his contentions.

THE COURT: Thank you.

TELEX MESSAGE

Dated April 5, 1976.

1322 Greenwich Time—April 5, 1976

To: HAYDEN/LAYRISSON/NEW ORLEANS

From: EVANS/APPLE/BRUSSELS

Information: J. WILLIAMS/BRUSSELS

Re: Danny Griffin

Subject employee underwent operation in this area on 2

April and is returning so U.S. today 5 April for convales-

cence which should be for approximately 2-3 weeks. He

purchased a round trip ticket before departure and should

contact you for clearance before returning. Please have

him cleared by doctor before returning him and send to

LAY BARGE 27. Please advise arrival.

Defendant’s Exhibit

No. 15

TELEX MESSAGE

Dated May 5, 1976.

1753 Greenwich Time—May 5, 1976

To: MIKE APPLE/BRUSSELS

From: CHARLES LAYRISSON/NEW ORLEANS

Daniel Griffin called our offices and advised that the doc-

tor has still not released him. He should be released within

a week to ten days. He will travel to New Orleans for a

physical by our doctors and we will advise his arrival

date once known.

Defendant’s Exhibit

No. 14

TELEX MESSAGE

Dated May 21, 1976.

1244 Eastern Standard Time

New Orleans, Louisiana—May 21, 1976

Danny Laried Griffin

Route 1, Box 44

Center, Texas 75935

Please contact me immediately at 504-587-5152.

Oceanic Contractors, Inc.

Charles F. Layrisson

Personnel Administrator

Defendant’s Exhibit

No. 13

TELEX MESSAGE

Dated June 1, 1976.

1518 Greenwich Time—June 1, 1976

To: C. LAYRISSON/NEW ORLEANS

From: J. EVANS/M. APPLE/NSD BRUSSELS

Information: J. WILLIAMS/NSD BRUSSELS

M. CALLOW/NSD BRUSSELS

A. McTIERNAN/NSD BRUSSELS

Re: Danny Griffin

This is to advise that effective today subject employee

has been terminated.

Should he contact you please advise him.

Defendant’s Exhibit

No. 12

HANDWRITTEN NOTE OF CHARLES F.

LAYRISSON, Defendant’s Personne! Administrator.

6/2/76

File in personnel jacket.

Advised Danny Griffin’s father, contract terminated 6/1/

76. Father states he is working for someone else. /C/

Defendant’s Exhibit

No. 11

TELEX

Dated September 30, 1976.

0930 Greenwich Time—September 30, 1976

To: BARGE CLERK LAY BARGE 27 VIA ANTOC

From: MARTIN K. WHITEHILL/JVDS/NED

BRUSSELS

Re: Griffin, Laried Danny/Payroll Deductible

Griffin spent three days in “Vesalius Hospital” at Brass-

chaai from April 2 to April 5, 1976. Please advise as

soon as possible if this is in connection with a work ac-

cident. If it was please forward accident report.

Employee number 48549.

End.

Defendant’s Exhibit

No. 9

TELEX

Dated October 1, 1976.

1630 Greenwich Time—October 1, 1976

To: MARTIN WHITEHILL/BRUSSELS

From: J. A. LOFTIN -T. EVANS/LAY BARGE 27

(ANTWERP)

Subject: Griffin, Laried Danny/Payroll Deductible

Reference: Your Telex BX-09-0955

Have no record of work accident on subject man for the

period listed in your telex. Might contact Jessie Williams

—Brussels for further information.

Regards, Tom.

Defendant’s Exhibit

No. 10

Office -Supreme Court, U.S.

FILED

oct 17 1961

L. STEVAS,

CLERK

NO. 81-614

Supreme Court of the United States

OcTOBER TERM, 1981

DANNY L. GRIFFIN,

Petitioner x

Vv.

OCEANIC CONTRACTORS, INC.,

Respondent

On Petition For Writ Of Certiorari ‘

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR RESPONDENT

THEODORE GOLLER

800 Bank of the Southwest

Building a

Houston, Texas 77002

(713) 651-5151

Attorney for Respondent

Of Counsel:

R. Scott HoGARTy and

FULBRIGHT & JAWORSKI

800 Bank of the Southwest Building

Houston, Texas 77002

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

QUESTION PRESENTED

Whether or not, under the facts and circumstances of

the case, a district court is empowered to exercise its

discretion in determining the duration of the period to

which the wage penalty applies under 46 U.S.C. § 596.

LIST OF ALL PARTIES TO THE. PROCEEDING

IN THE DISTRICT COURT

AND COURT OF APPEALS

Petitioner, Danny L. Griffin

Respondent, Oceanic Contractors, Inc.

(now McDermott International, Inc. )

Respondent’s Parent Corporation,

McDermott, Inc.

Respondent’s Subsidiaries and Affiliates,

Badya Builders, Inc.

Creole Insurance Company, Ltd.

Honore Insurance Company, Ltd.

Jaramac Associated Services, Ltd.

J. Ray McDermott ( Aust.) Pty, Ltd.

J. Ray McDermott (U.K.) Inc.

J. Ray McDermott London, Ltd.

Malmac Sdn. Bhd.

McDermott Far East, Inc.

McDermott (Malaysia) Sdn. Bhd.

McDermott Servicos de Construcao, Ltda.

McDermott West Indies Company

Oceanic Red Sea Company

P. T. Batam Fabricators

P. T. McDermott Indonesia

Sharman, Allen, Gay & Taylor, S.A.

Chartering Company (Singapore), Pte. Limited

SE Ee Oe SEED cc ccccccccecceccnccecscesecece

TABLE OF AUTHORITIES

CASES

American Foreign SS Co. v. Matise, 423 U.S. 150 (1975),

CE ree

Carribbean Federation Lines v. Dahl, 315 F.2d 370 (Sth

Cir.), cert. denied 375 U.S. 831 (1963) ..........4045-

The CHESTER, 25 F.2d 908 (D. Md. 1928) ...........

Collie v. Fergusson, 281 U.S. 52 (1930) ...........0ee00:

Escobar v. SS. WASHINGTON TRADER, 503 F.2d 271

(9th Cir. 1974), vacated and remanded on other grounds

2 & fC rT ae ee eee

Eyston v. Studd, 2 Plowden 450, 95 Eng. Rep. 688 (1574)

Forster v. Oro Navigation Co., 228 F.2d 319 (2d Cir. 1955),

affg <* F, 45 Ee > BEEN. Keccccddocnces

Griffin v. Ocen ontractors, Inc., No. 80-1599 Summary

SE ED GES GEE Gen ccecucedcesocesoccooese

wauwneee8 8 a @

CASES.

Griffin v. Oceanic Contractors, Inc., C.A. No. S-78-26 (E.D.

Tem. 19BD) ncccccccccccccccccccccccccccccccsccccs

Kontos v. SS. SOPHIE C, 236 F. Supp. 664 (E.D. Pa.

BED cccocssctdgnccseccccecesecncecneccsossooesees

— v. Hudson Waterways Corp., 640 F.2d 997 (9th

B BEED cc ccccccdcccescoccccocccccscccetescceses

Mavromatis v. United Greek Shipowners Corporation, 179

P26 310 (iat Cir. 1080) ..nccccccccccccccccccceces

Mystic S.S. Co. v. Stromland, 20 F.2d 342 (4th Cir. 1927)

Pacific Mail S.S. Co. v. Schmidt, 241 U.S. 245 (1916) .

— v. SS. AFRICAN PILGRIM, 266 F.2d 125 (4th

WD. BOGOR cccccccccecccccccccccccccceesoccsccocees

— v. THE ETIVEBANK, 134 F. Supp. 530 (E.D. Va.

BED dite wendedcccpececccocccessccocesceconsessesce

Southern Cross SS. Co. v. Firipis, 285 F.2d 651 (4th Cir.

1960), cert. denied 365 U.S. 869 (1961) ...........---

Spero v. The ARGODON, 150 F. Supp. 1 (E.D. Va. 1957)

Swain v. Isthmian Lines, ‘Inc., 360 F.2d 81 (3d Cir. 1966)

— v. SS. SANTA "MERCEDES, $72 F.2d 1331 (9th

DME gdeecndnediececcoceosadboccnecsascecéses

Usatorre v. THE VICTORIA, 172 F.2d 434 (2d Cir. 1949)

Ventiadis v. C. J. Thibodeaux & Co., 295 F. Supp. 135

Py Ms ME cndeccce ccsenecegece ceesesccoscess

The VICTORIA, 76 F. Supp. 54 (S.D.N.Y. 1947), rev'd

on other grounds sub. nom. Usatorre v. The VICTORIA,

S78 DS SEG GHG Ge. TRGB) on cccccccccccccccccccecs

BOOKS, LAW REVIEW ARTICLES

AND LECTURES

Cardozo, THE NATURE OF THE JUDICIAL PROCESS,

BE BOP GEE. ccccecdeccoccocececvcencsssecccoss

Cox, Learned Hand and the Interpretation of Statutes, 60

HARV. L. REV. 370 (1947) .....cccccccccccccccces

L. Hand, How Far is a Judge Free in Rendering a Deci-

sion? in Law Series I, Lect. No. 14, National

Counsel on Radio in Education (Un. of Chi. Press, 1933)

Frankfurter, Some Reflections on the Reading of Statutes,

47 COL. L. REV. 527 rrr

NO. 81-614

IN THE

Supreme Court of the United States

OcTOBER TERM, 1981

DANNY L. GRIFFIN,

Petitioner

Vv.

OCEANIC CONTRACTORS, INC.,

Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR RESPONDENT

To The Honorable Chief Justice And The

Associate Justices Of The Supreme Court:

Respondent, Oceanic Contractors, Inc. (hereinafter re-

ferred to as “Oceanic”), respectfully submits this its Brief

in Opposition to Petitioner’s Petition for Writ of Certiorari

and respectfully prays that the Court deny issuance of the

writ.

OPINIONS BELOW

Petitioner’s references to the opinions of the courts

below are correctly stated.

JURISDICTION

Respondent acknowledge

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