Petition — Browning v. B. F. Diamond Construction Co.

Office - - Supreme

PILED |

JUM 22 tgp.

No. ALEX NODER é.. STEVAS,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1981

ELIZABETH F. BROWNING, AS WIDOW AND AS

ADMINISTRATRIX OF THE ESTATE OF

JOSEPH D. BROWNING, DECEASED,

Petitioner,

B. F. DIAMOND CONSTI.UCTION COMPANY, INC.,

AND STEVENS BROTHERS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

RICHARD J. HARRIS

EDWARD T. BRENNAN

BRENNAN, HARRIS & ROMINGER

Post Office Box 2784

Savannah, Georgia 31402

(912) 233-3399

Attorneys for Petitioner

a er ne

Washington, OC. + THIEL PRESS + (202) 638-452!

(4)

QUESTION PRESENTED

Whether summary judgment in favor of employer

with respect to a wrongful death action under general

maritime law may be granted where employee, who was

neither a “seaman” under the Jones Act, 46 U.S.C.

§ 688, nor an “employee” under the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U.S.C.

§ 902(3), was fatally injured on a bridge pier while super-

vising the unloading operation of employer’s adjacent

crane barge on navigable territorial waters, and where

injury was the result of either unseaworthiness of one or

more of employer’s vessels or employer’s negligent

operation thereof.

(#)

TABLE OF CONTENTS

QUESTION PRESENTED ..................

TABLE OF AUTHORITIES ................

I ne a is ecu

ARGUMENT:

I. Since Petitioner’s Decedent Was “Doing The Work

Of A Seaman” At The Time Of His Fatal Lajuries,

She Is Entitled To Recover For His Wrongful

Death Caused By Unseaworthiness ........

The General Maritime Law Also Provides A

Wrongful Death Action Based On Negligence .

APPENDICES:

A: Opinion of Court of Appeals of Geergia dated

Cc:

January 12, 1982, reported in 289 S.E.2d 268

Certified Order denying Motion for rehearing

dated January 26,1982 ..........6606:

Nvuiice of Denial by Georgia Supreme Court of

Petition for Writ of Certiorari dated March 11,

Motion for Reconsideration dated March 26,

: Amended Order of Superior Court, Muscogee

County, Georgia, dated July 23,1981 .....

to reverse and remand decision of Benefits

Review Board, dated May 17, 1982 .......

: Order of U.S. Court of Appeals, Eleventh Circuit,

(ii)

TABLE OF AUTHORITIES

Page

Allen v, Seacoast Products, Inc., 623 F.2d 355 (5th Cir.

Did .at is Gp enhnets ones tdibeeeé ec beé one’s 12

American Export Lines, Inc. v. Alvez, 446 U.S. 274

i He sec CUeD le we» ob hee sus Cote bdeseeseoe 18

Barry v. Cantrell, 443 Ga. App. 439, 258 S.E.2d 61

Dr avtss nate des b0s i beue awe eabaesoeecec 6

Browning v, B. F. Diamond Construction Company, No.

81-5656 (11th Cir. filed May 17, 1982) .............. 5

Churchil! v. Perini North River Associates, 652 F.2d 255

(2d Cir. 1981), cert. granted sub nom. Director, Office

of Workers’ Compensation Programs v. Perini North

River Associates, 50 U.S.L.W. 3668 (U.S. Feb. 22,

EE Grech als d dane 6 Cand odd wo be ccee 5

Crumady v. Joachim Hendrik Fisser, 358 U.S. 423 (1959) .. . .12

Dennis v. Central Gulf Steamship Corp., 453 F.2d 137

(5th Cir.), cert. denied 409 U.S. 948 (1972) ........... 14

Duncan v. Dravo Corp., 426 F. Supp. 1048 (W.D. Pa.

Sods EHUS 6 60.6.06 556600 Oda bed cbs Kee neces 12

Edmonds v. Compagnie Generale Transatlantique, 443 U.S.

Se GE 0h h0a6b ph db-0-6 Ct c heb bde 0'd-406 eee 8

Empire Seafoods, Inc. v. Anderson, $98 F.2d 204 (5th

Cir.), cert. denied 393 U.S. 983 (1968) ........... 11,12

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.

PEED cob ab b6 00 bn 0nb 60h 6606 6E bee een eve 17

Gilliam v. Wiley N. Jackson Co., 659 F.2d 54 (11th Cir.

1981), petition for cert. filed sub nom. Wiley N.

Jackson Co, v. Director, Office of Workers’ Compen-

sation Programs, 50 U.S.L.W. 3489 (U.S. Dec. 4,

Ae, I Ko SUH hs aes cc eriacesessecs 5

Green v, Ross, 481 F.2d 102 (5th Cir. 1973), cert. denied

Ge es BORD GUUGED os wee ws cbcewosccccecsecs 15

Gutierrez v. Waterman Steamship Corp., 373 U.S. 206

DD 6 eas che cee Unk hd bows bebe ceo be 10, 11

Hornsby v. Fish Meal Company, 431 F.2d 865 (5th Cir.

DU cea beeW Ree eGRes ocahecebe cocesceecss 14

(tv)

Cases, continued: Page

Hubschman v. Antilles Airboats, Inc., 440 F. Supp. 828

RE ee re ee 5 2 oe ee 16

Ivy v, Security Barge Lines, Inc., 585 F.2d 732 (5th Cir.

1978), rev'd on other grounds 606 F.2d 524 (1979),

(en banc), cert. denied 446 U.S. 956 (1980) ......... 8, 16

Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied

sub nom. Chicot Land Co. v. Kelly, 416 U.S. 969

CRUD ctcusar TOT ET TETT ET CPOE LITE 17

Kermarec v. Compagnie Generale Transatlantique, $58

SD EUUEN 6 os SNCs CESS wd eo OK OS Oe Eosenecer 14

Kloster v. The S.S. Chatham, 475 F.2d 43 (4th Cir. 1978) ....12

Ledoux v, Petroleum Helicopters, Inc., 609 F.2d 824 (5th

Cir. 1980) ..... Sep obs vat be vs Cam ass.eqececcees 16

Lewis v, Roland E. Trego & Sons, 501 F.2d 372 (4th Cir

SUPE cccctsevecbes Kaesétcuactivdesisves 8, 9, 10

Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir

Gee Vaideaasvece bb b.e0 babe tN os SRS E CORSON SS 8

McCarty v. Service Contracting, Inc., 317 F. Supp. 629

SN Gs ROUEN WOKS < oo Se eeb ee He Ceewedseccsneet 12

Moragne v. States Marine Lines, Inc., 211 So. 2d 161

(Pla. 80GB) oc coc cvccccveccecce sawecotecrece 14

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(R97E) nce cceces neo saehene petess 4, 8, 13, 14, 17, 18

Mungin v. diinaa Seeainsltp Corp., 342 F. —" 479 Khong

So, ee ea en ee ee eee 12

Nacirema Co, v. Johnson, $96 U.S. 212 (1969) ........... 11

Nelson v, United States, 639 F.2d 469 (9th Cir. 1980)... . 16, 17

The Oregon, 158 U.S. 186 (1894) ... 2.6... 0c eee enees 12

Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir. 1973),

modified 513 F.2d 911, cert. denied 423 U.S. 840

a Sbeapeteeseevaces , 12,17

Pope & Talbott, Inc. v. Hawn, 346 U.S. 406 (1958) ........ | 8

Reed v. The Yaka, 373 U.S. 410 (1962) ..... onew eabene . 8

Rushing v. Ellis, 124 Ga. App. 621, 184 S.E.2d 667

EY EERO p ee Mp ARBRE es GEN RCS a ag .4

(v)

Cases, continued: Page

The Sea Gull, 21 F. Cas. 909 (No. 12,578) (C.C. Ord.

1865) ....... 4 ESS Tere oot eee TC CORTE ET 17

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974)... . 4,18

Sea's Shipping Co. v. Sieracki, $28 U.S. 85 (1946) ........ 4,8

Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975) ...... 12

Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th

Cir, 1978), cert. denied 442 U.S. 909 (1979)........ 15,17

Victory Carriers, Inc, v. Law, 404 U.S. 202 (1971) ......... 10

Webb v. Webb, 451 U.S. 493 (1981) ... 2... .. cece ees 6

Weed v. Bilbrey, 215 So. 24 479 (Fla. 168), cert. denied

394 U.S. 1018 (1969), rehearing denied 400 U.S.

EE Aha Che ah etRE OO % bOe 0 oe Wh CRE e 13, 14

Statutes:

GUO a 04k nis 4 keh ces sche bene be 5

IES rio 35's ‘ain 6 Ulla b 0 Saba bis pawka 5

SOUED . Wd iveKnwalkeeds os ce bhaus wees 4,8

I 96 ab ies son wb Sed 666.066 tea eowas 5,4

Ps. he bn 046 u Vek bees se bde nna bea 2,10

Miscellaneous:

G. Gilmore & C. Black, The Law of Admiralty (2d ed.

GIVES 0% vO d 06d cc ebnr csaUeberectedcosesetes 16

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1981

ELIZABETH F. BROWNING, AS WIDOW AND AS

ADMINISTRATRIX OF THE ESTATE OF

JOSEPH D. BROWNING, DECEASED,

Petitioner,

B. F. DIAMOND CONSTRUCTION COMPANY, iNC.,

AND STEVENS BROTHERS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

The opinion of the Court of Appeals of Georgia

appears at Appendix A and is reported in 289 S.E.2d

268.

JURISDICTION

The judgment of the Court of Appeals of Georgia

was entered on January 12, 1982. Rehearing was denied

on January 26, 1982. See Appendix B. Petitioner's

1

2

Application for Writ of Certiorari was denied by the

Supreme Court of Georgia on March 11, 1982 (Presiding

Justice Hill, dissenting). See Appendix C. Petitioner’s

Motion for Reconsideration was denied on March 26,

1982 (Presiding Justice Hill, dissenting). See Appen-

dix D.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(3).

STATUTE INVOLVED

The pertinent portion of the Extension of Admiralty

Jurisdiction Act, 46 U.S.C. § 740, reads as follows:

STATEMENT OF THE CASE

Diamond was in the process of constructing a new

highrise highway bridge to span an arm of the Gulf of

Mexico near Destin, Florida. The decision below said:

3

tug [owned and operated by Respondent Diamond

and] used in the operation ran into the construction

homer pear Are hee Nema

The construction barge in turn hit a

haashdin cunakend suniadh te dd epentan

causing a guy rope to break and the steel bar cages

to fall. One of these crushed the decedent.

Appendix A at la-2a. Petitioner has been receiving

worker’s compensation death benefits under Florida

law.

Petitioner originally brought a wrongful death action

against Respondent Diamond and its subcontractor,

Respondent Stevens Brothers, Inc., in the Superior Court

for Muscogee County, Georgia, under the Jones Act, 46

U.S.C. § 688, as well as the general maritime law.' Her

complaint alleged that both defendants, through their

employees and subcontractors, were jointly and severally

negligent in the manner in which the steel bar cages were

anchored by a nylon rope guy lime to the crane barge,

that such line was defective and that the negligence of

the respondents and the defective line rendered the crane

barge unseaworthy. Subsequently, Petitioner learned of

the collision of the tugboat with the construction barge

through answers to interrogatories filed by Respondent

Stevens Brothers, Inc.

Respondent Diamond filed a motion for summary

judgment supported by various affidavits of its em-

ployees. Petitioner filed counter-affidavits. In its

memoranda of law filed in support of its motion for

summary judgment, Respondent Diamond argued

1 Suit was in state court under the “savings to suitors”

clause, 28 U.S.C. § 1838 (1).

4

Browning was not a Jones Act seaman and that a general

maritime claim with respect to unseaworthiness was not

available to Petitioner. In her memoranda in opposition

to the motion for summary judgment, Petitioner cited

the cases of Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970), Sea-Land Services, Inc. v. Gaudet,

414 US. 573 (1974), and Sea’s Shipping Co. v. Sieracki,

$28 U.S. 85 (1946), for the proposition that she had the

right to maintain a wrongful death action based on the

unseaworthiness of the vessel under general maritime law.

Petitioner then filed an amendment to her complaint.?

As amended, the complaint alleged negligence of both

ts in the manner in which the said cages were

Both the barge and tugboat were alleged to be unsea-

worthy. Finally, the amended complaint states that

Petitioner is

under the provisions of the Jones

be

shoremen’s and Harbor Workers’

was engaged in maritime employment thereunder,

as well as under the general maritime law.

Included in the proof before the trial court were the

The trial court, without a written opinion, entered a

determined that decedent, while not a seaman,

said answers to interrogatories of Respondent Stevens

Brothers, Inc., which charged that Respondent Diamond's

final order granting Respondent Diamond’s Motion for

with respect to general maritime law. See Appendix E.

No ruling on Petitioner’s claim under the Longshoremen’s

and Harbor Workers’ Compensation Act (“LHWCA”)

was made, and Respondent Diamond’s Motion for

Summary Judgment with respect to the LHWCA is still

Summary Judgment with respect to the Jones Act and

pending before the trial court.’

tugboat collided with the barge. There is nothing in the

record on appeal to refute this.

eee

§acig i: Hi

if : gi =

i te :

fra : a

6

The federal question sought to be reviewed was first

raised by Petitioner’s Complaint, as amended, and by

citing the court to the Moragne, Gaudet and Sieracki

decisions of this Court, before the summary judgment

ordered was entered.‘ At the state appellate court level,

Petitioner argued that, even if her decedent was not a

Jones Act seaman or a covered employee under the

LHWCA, she could still pursue a wrongful death action

under general maritime law, based on a violation of

maritime duties whether such violation arose from

“trial court correctly concluded that a cause of action

based on the federal maritime doctrine of seaworthiness

was not available” since the decedent was not “doing the

work of a seaman” aboard the barge. See Appendix A

at 3a-4a. The Georgia appellate courts, in their rulings,

made no mention at all of Petitioner’s claim under

general maritime law based on negligence, although

she made that argument in her Brief of Appellant to

7

the Court of Appeals of Georgia, in her Supplemental

Brief of Appellant filed with that court, in her Motion

for Rehearing filed with said court, in her Application

for Writ of Certiorari filed with the Supreme Court of

Georgia and in her Motion for Reconsideration filed

with the latter court.

ARGUMENT

I.

SINCE PETITIONER’S DECEDENT WAS “DOING

THE WORK OF A SEAMAN” AT THE TIME OF

HIS FATAL INJURIES, SHE IS ENTITLED TO

RECOVER FOR HIS WRONGFUL DEATH CAUSED

BY UNSEAWORTHINESS.

The basic issue before the Court is whether the general

maritime law provides a wrongful death action for the

Petitioner in this case. The Georgia appellate court

decision for which review is sought held that, although

Mr. Browning spent “some” of his working time on

barges or tugs owned and operated by Respondent

Diamond, he was not “doing a seaman’s work” since

his presence of the vessels was “intermittent and inci-

dental to his construction duties” as a construction

supervisor on the bridge project.’ Appendix A at 3a.

5 This conclusion is steadfastly rejected by Petitioner. The record

in this case contains testimony from Petitioner to the effect that

Mr. Browning was the “rig foreman” for the crane barge and had

spent most of his working time out on the water where the

substructure was slowly taking shape from the bed of the navigable

channel. Respondent Diamond’s project superintendent testified

that Mr. Browning only “occasionally” came back to the office,

spent most of his time out on the water where the substructure

work was going on, and on the day of the accident, was super-

vising the activities of the crane barge. This Court has repeatedly

This is not a correct statement of the law or the facts.

This Court in Moragne v. States Marine Lines, Inc.,

supra, created a federal wrongful death action unde1

general maritime law for death occurring on territorial

waters caused by violation of maritime duties, specifi-

cally, in that case, unseaworthiness. Reed v. The Yaka,

$73 U.S. 410 (1962), is correctly cited by the Georgia

Court of Appeals for the proposition that a shore-based

employee doing a seaman’s work abord his employer’s

vessel can recover for injuries caused by the vessel’s

unseaworthiness.© Appendix A at 3a. The Court of

Appeals, paraphrasing Lewis v. Roland E. Trego & Sons,

501 F.2d 372, 374 (4th Cir. 1974), next says:

The critical question . . . is whether . . . [the dece-

dent] . . . was doing the work of a seaman aboard

the barge. If he was, he is entitled to sue on the

warranty of seaworthiness; if not, his suit must be

dismissed.

3, supra), Moragne/Yaka still provide Petitioner a remedy.

See, Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1353 (5th

J see Inc., 585 F.2d

732, 738, n.8 (5th Cir. 1978), rev'd on other grounds, 606 F.2d

;

.

:

:

9

Appendix A at 3a-4a. The decision from the court

below then incorrectly states that, since “the uncontro-

verted evidence’ establishes that the decedent’s duties

were those of a construction supervisor on a bridge

project at the time of his death,” the federal maritime

doctrine of seaworthiness is not available. Appendix A

at 4a.

The Lewis case, in fact, stands for just the opposite

result. Lewis was a general laborer, hired to work on

land and on the employer’s pile driver and barges. He

was injured by an overturning scaffold that had been

erected to help him and other workmen place headers

atop piles for the construction of a boathouse. The

Fourth Circuit held that Lewis was doing the work of

a seaman even though at the time of the accident he was

not tending the barge but was building the boathouse.

The key was the fact that “the work then being done by

plaintiff was contributing to the mission of such barge,

namely its use as a floating platform for the performance

of maritime construction work.” Jd., at 374.

A similar argument can be made foi Mr. Browning,

who, like Lewis, had no seaman’s papers, was not

(according to Respondent Diamond) assigned to any

particular vessel in Respondent Diamond’s fleet of

construction barges and tugboats, slept on shore and

only went aboard a vessel when his construction work

required him to be on the water. In Lewis’s case this

was only 10 percent of the time, while Mr. Browning

had spent most of his time on this project out on the

water and only occasionally came to shore. It cannot be

disputed that Mr. Browning was killed while supervising

the unloading activities of the crane barge. Yet the

Fourth Circuit found that Lewis was a Yaka seaman

and the court below found Mr. Browning was not.

10

There is only one major difference between Lewis and

this case. The accident in Lewis took place on the barge

(not the boathouse) while Mr. Browning’s took place

on the bridge pier adjacent to the barge. However, the

Extension of Admiralty Jurisdiction Act, 46 U.S.C.

§ 740 (“Admiralty Extension Act”) provides:

The admiralty and maritime jurisdiction of the

United States shall extend to and include all cases

of damage or injury, to person or property, caused

by a vessel on navigable water, notwithstanding that

such damage or injury be done or consummated on

land.

The court below found that the accident which ulti-

mately took Mr. Browning’s life resulted when “a tug

used in the operatic ran into a construction barge.”

Appendix A at la. The construction barge in turn hit

a floating crane barge, causing a guy rope to break and

the steel bar cages to fall on Mr. Browning.

In Gutierrez v. Waterman Steamship Corp., 373 U.S.

206 (1963), this Court, relying on the Admiralty Exten-

sion Act, held that admiralty jurisdiction exists where

a vessel owner commits a tort while or before the vessel

is being unloaded and the impact is felt ashore at a time

and place not remote from the wrongful act. There a

longshoreman was injured while working on the dock

when he slipped on some beans which had leaked from

defective cargo container bags from the vessel. The use

of defective cargo containers, as appurtenances of the

vessel, created an unseaworthy condition. It is important

to remember that admiralty jurisdiction in Gutierrez was

based, not on the function the longshoreman was per-

forming at the time of his injury (“work of a seaman”)

but rather on the fact that he was injured by an appur-

tenance of the vessel. See Victory Carriers, Inc. v. Law,

11

404 U.S. 202, 210-11 (1971). See also Nacirema Co.

v. Johnson, 396 U.S. 212, 221-23 (1969).

The facts in the present case are not dissimilar from

those in Gutierrez. Mr. Browning was killed as a direct

result of a “chain reaction” beginning with the collision

of the tugboat with a barge and culminating with the

guy rope breaking, causing one of the steel bar cages to

fall on him while he was on the adjacent bridge pier.

All vessels were under common ownership of Respondent

Diamond.

No determination of whether an unseaworthy condi-

tion existed was made by the courts below. As pointed

out in her briefs filed with the state appellate courts,

there is sufficient evidence in the record to infer, for

summary judgment purposes, that both the crane barge

and tugboat were unseaworthy (and their owner Re-

spondent Diamond negligent). Unseaworthiness of all

vessels could be predicated on the failure of their crews

to keep a proper lookout and to warn Mr. Browning of

the impending collision. See Empire Seafoods, Inc. »v.

Anderson, 398 F.2d 204, 210 (5th Cir. 1968), cert.

denied 393 U.S. 983 (1968).

The tugboat was unseaworthy because the operator

of the vessel knew, or should have known, that workers,

such as Mr. Browning, were working in a potentially dan-

gerous situation. Several of the lines temporarily holding

the cages upright on the bridge piers were attached to

the floating crane barge and therefore subject to any

movement of the barge. Any other vessels in the area,

such as the tugboat, should have been especially careful

to avoid causing any unnecessary movement of the barge.

The fact that the tugboat struck one of the barges with

sufficient force to cause a line on the other barge to

break is evidence of an incompetent operator of the

12

tugboat. An incompetent seaman may render a vessel

unseaworthy. Empire Seafoods, Inc. v. Anderson, supra,

$98 F.2d at 210. See also Duncan v. Dravo Corp.,

426 F.Supp. 1048, 1052 (W.D. Pa. 1977), where the

employsr’s tugboat bumped the barge on which the

employee was working and the district court held that

a jury question was presented as to the employer’s duty

to refrain from operating other vessels in such a manner

as to create an unnecessary risk of harm to the workmen

on the barge. Also, since the record below contains no

explanation of the collision by Respondent Diamond,

a presumption of fault exists. See The Oregon, 158 U.S.

186, 192-93 (1894); see also Skidmore v. Grueninger,

506 F.2d 716, 721 (5th Cir. 1975), and Petition of

M/V Elaine Jones, 480 F.2d 11, 17 (5th Cir. 1973),

modified 513 F.2d 911, cert. denied 423 U.S. 840

(1975).

The crane barge was unseaworthy because the guy rope

attached to the barge which supported the cages broke.

Petitioner claims the rope was defective. It was supplied

by Respondent Diamond from the barge. Use of a rope

or cable lacking the test strength for the weight of the

object to be moved or supported makes the vessel pro

tanto unseaworthy. See Crumady v. Joachim Hendrik

Fisser, 358 U.S. 423, 427-28 (1959); see also Allen v.

Seacoast Products, Inc., 623 F.2d 355, 360-62 (5th

Cir. 1980), McCarty v. Service Contracting, Inc., 317

F. Supp. 629 (E.D. La. 1970), and Mungin v. Calmar

Steamship Corp., 342 F.Supp. 479 (D. Md. 1972).

Both barges would be unseaworthy if their mooring lines

were not properly attached. See Kloster v. The S.S.

Chatham, 475 F.2d 43 (4th Cir. 1973).

13

THE GENERAL MARITIME LAW ALSO PRO-

VIDES A WRONGFUL DEATH ACTION

BASED ON NEGLIGENCE.

The question of the propriety of Petitioner’s Moragne

claim under general maritime law based on negligence

has been completely ignored by the Court of Appeals in

its decision despite having been raised several times.

Although Moragne involved a claim by the widow of

a longshoreman injured on Florida territorial navigable

waters based on the maritime doctrine of unseaworthi-

ness, its key language states that an action does lie under

general maritime law for death “caused by violation of

maritime duties.” 398 U.S. at 409. The negligence issue

had not been appealed and was not before the Court in

Moragne. Significantly, the term “caused by violation

of maritime duties” was used instead of “caused by

unseaworthiness.” In keeping with the uniformity sought

in Moragne, it has been assumed by several members of

this Court, by the Circuit Courts of Appeals, and by the

textwriters that “violation of maritime duties” includes

negligence in addition to unseaworthiness and that a

Moragne wrongful death action is available to the families

of all persons whose fatal injuries are caused by violation

of maritime duties.

Shortly after Moragne was decided, this Court declined

to hear the case of Weed v. Bilbrey, 215 S. 2d 479 (Fla.

1968), cert. denied 394 U.S. 1018 (1969), rehearing

denied 400 U.S. 982 (1970), with Mr. Justice Douglas,

joined by Mr. Justice Black, filing a strong dissent.

Edna Weed had brought wrongful death and survival

actions in a Florida state court to recover for the death

of her husband in an airboat collision on navigable

territorial waters. Reversing the trial court, the Supreme

14

Court of Florida held that the absolute common law

defense of contributory negligence rather than the

partial admiralty defense of comparative negligence

was applicable, relying on its own earlier decision in

Moragne v. States Marine Line, Inc., 211 So. 2d 161 (Fla.

1968), which it considered indistinguishable. Mr. Justice

Douglas, in his dissent in Weed said, 400 U.S. at 984:

Moreover, had Mrs. Weed proceeded through the

federal courts, or had she instituted her suit later,

she might have arrived in this Court after Mrs.

Moragne. She did reach this Court three weeks

before Mrs. Moragne; but her petition was denied.

Had she followed Mrs. Moragne to this Court, the

result in her case would have been different.

(Emphasis supplied.) The Fifth Circuit in Hornsby v.

Fish Meal Company, 431 F.2d 865, 867 (5th Cir. 1970),

after waiting for this Court’s decision in Moragne held

that there “is now a cause of action for wrongful death

in admiralty that is not dependent on adjacent state

law.” In Hornsby wrongful death actions (presumably

based on negligence) were brought by the survivors of

two pilots who were killed in a mid-air collision over

Louisiana territorial waters. The circuit court ruled that

the traditional admiralty comparative negligence doctrine

was applicable and that recovery was not absolutely

barred by the state contributory negligence rule.

This Court has held that the owner of a vessel in

navigable waters owes to “all who are on board for

purposes not inimical to his legitimate interests the duty

of exercising reasonable care under the circumstances

of each case.” Kermarec v. Compagnie Generale Trans-

atlantique, 358 U.S. 625, 632 (1959). In Dennis v.

15

Central Gulf Steamship Conp., 453 F.2d 137 (5th Cir.

1972), cert. denied 409 U.S. 948 (1972), the daughter

a seaman’s work and therefore was not entitled to a

warranty of seaworthiness. But the Fifth Circuit, citing

Moragne and Kermarec, did affirm the lower court's

on negligence of the vessel owner in allowing an unsafe

condition to exist. Also, in Green v. Ross, 481 F.2d

102 (5th Cir. 1973), cert. denied 414 U.S. 1068 (1973),

In Thibodaux v. Atlantic Richfield Co., 580 F.2d

841 (5th Cir. 1978), cert. denied 442 U.S. 909 (1979),

a land-based worker was drowned as a result of the

negligent operation of a boat taking him to work. His

widow brought suit under the Jones Act, under the

Longshoremen’s and Harbor Workers’ Compensation Act

and under the general maritime law.

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proximate cause of the injuries was the collision of the

tugboat with a barge.

G. Gilmore & C. Black, The Law of Admiralty (2d

ed. 1975), states that the Moragne remedy “provides

recovery for deaths caused by negligence” as well as by

unseaworthiness. The Ninth Circuit in Nelson v. United

States, 639 F.2d 469, 473 (9th Cir. 1980), held that

“the need for uniformity in maritime wrongful death

actions requires the extension of Moragne to cover claims

based on negligence, to the exclusion of state wrongful

death statutes.” Seemingly contrary to this, the Fifth

Circuit had said in Jvy v. Security Barge Lines, Inc., 606

F.2d 524, 527 (5th Cir. 1979) (en banc), regarding a

death claim under the Jones Act and under general

maritime law based on unseaworthiness, “Moragne did

not create or even discuss an action for negligence, it

dealt only with death occasioned by unseaworthiness.”

The circuit court there, however, was discussing and

claim

action for damages if death occurs in territorial waters or

on land. Subsequently, a Fifth Circuit panel in Ledoux

v. Petroleum Helicopters, Inc., 609 F.2d 824 (5th Cir.

1980), held that the survivors of a helicopter pilot

17

despite the fact that (as in the present case, Thibodaux

and Ledoux) the applicable workers’ compensation

statute purported to provide an exclusive remedy. See

also Nelson v. United States, supra, 639 F.2d at 477. As

pointed out in Moragne and Thibodaux, state remedial

statutes cannot be applied when they will conflict with

exclusive maritime substantive rights afforded by the

general maritime law. Moragne v. States Marine Lines,

supra, 398 U.S. at 401, and Thibodaux v. Atlantic

Richfield Co., supra, 580 F.2d at 847.

The focus here is not on the activities of the fatally

injured employee (which would be necessary in order to

determine his Jones Act or LHWCA status), but rather

where

nexus.” See also Kelly v. Smith, 485 F.2d 520 (5th

Cir. 1973), cert. denied sub nom. Chicot Land Co. v.

Kelly, 416 U.S. 969 (1974). It is a settled canon of

maritime jurisprudence, as pointed out over a century

ago by Mr. Chief Justice Chase, that

[i]t better becomes the humane and liberal character

18

F. Cas. 909 (No. 12,578) (C.C. Md.

1

in Moragne, supra, 398 U.S. at 387,

414 U.S. at 583, and American Export

Lines, Inc. v. Alvez, 446 U.S. 274, 281-82 (1980).

Petitioner urges the Court to confirm that Moragne

June 23, 1982

la

APPENDIX A

° IN THE

COURT OF APPEALS OF GEORGIA

No. 63096

BROWNING

v.

B. F. DIAMOND CONSTRUCTION

COMPANY, INC.

Rehearing Denied Jan. 26, 1982

Certiorari Denied March 11, 1982

Richard J. Harris, Savannah, for appellant.

H. Baxter Harcourt, G. William Snipes, John W.

2a

construction barge in turn hit a floating crane barge,

causing a guy rope to break and the steel bar cages to fall.

One of these crushed the decedent. The plaintiff has

recovered worker’s compensation benefits under Florida

law. She brought this action for negligence under the

Jones Aci, 46 U.S.C.A. § 638, which provides that

. [I}m case of the death of any seaman as a result

. ++ personal injury .. . [in the course of his employ-

ment] the personal representative of such seaman may

maintain an action for damages at law with the right of

trial by jury.” The appellant argues that her husband

was a seaman within the meaning of the Act and that

this suit for damages may consequently be maintained

pursuant to 28 U.S.C.A. § 1333. The plaintiff also

bases her claim for relief upon the general maritime law

doctrine that a vessel is warranted to be seaworthy or

reasonably fit. She appeals the trial court’s grant of

summary judgment to defendant as to both theories.

By amendment to her complaint, the plaintiff also

sets out a cause of action under the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U.S.C.A.

§ 905(b). This cause of action is not involved in this

appeal and remains pending in the trial court. Held:

1, “[T]here is an evidentiary basis for a Jones Act

case to go to the jury: (1) If there is evidence that

the injured workman was assigned permanently to a

vessel (including special purpose structures not usually

employed as a means of transport by water but designed

to float on water) or performed a substantial part of

his work on the vessel; and (2) if the capacity in which

he was employed or the duties which he performed

contributed to the function of the vessel or to the

of its mission, or to the operation or

welfare of the vessel in terms of its maintenance during

its moveinent or during anchorage for its future trips.”

*

Sa

Offshore Company v. Robison, 266 F.2d 769, 779 (5th

Cir. 1959). The claim must not only involve an occur-

rence upon navigable waters, it must have a maritime

nexus, ie., a “significant relationship to a traditional

maritime activity.” Executive Jet Aviation, Inc. v. City

of Cleveland, 409 U.S. 249(4), 268, 93 S.Ct. 493,

504, 34 L. Ed. 2d 454 (1972).

The decedent in this case spent some of his working

time on barges or tugs owned and operated by the

defendant, and he could reach the “piers” or “footings”

only by water transport. However, he was in no sense

a crew member of any such barge or tug and was not

performing a seaman’s duties. See Biggs v. Norfolk

Dredging Co., 360 F.2d 360, 364 (4th Cir. 1966). His

presence on these vessels was intermittent and incidental

to his construction duties. Because his duties bore no

significant relationship to traditional maritime activity,

he was not a seaman within the meaning of the Jones

Act. Accord Whittington v. Sewer Const. Co., 541 F.2d

427 (4th Cir. 1976); Simko v. C&C Marine Maintenance

Co., 594 F.2d 960 (3rd Cir. 1979).

2. “The admiralty doctrine of absolute liability for

unseaworthiness is based on protection of seamen who

sign articles for a voyage and are then under the absolute

control of a master with power to order them to do the

ship’s work in any weather, under any conditions, using

such equipment as may be furnished by the shipowner.”

Offshore Co. v. Robison, supra, p.781. Under this

doctrine a shore-based employee doing a seaman’s work

aboard his employer’s vessel can recover for injuries

caused by the vessel’s unseaworthiness. Reed v. The

S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L. Ed. 2d

448 (1963). “The critical question ... is whether .. .

[the decedent] . . . was doing the work of a seaman

4a

aboard the barge. If he was, he is entitled to sue on

the warranty of seaworthiness; if not, his suit must be

dismissed.” Lewis v. Roland E. Trego & Sons, 501 F.2d

$72, 374 (4th Cir. 1974). As previously held, the

uncontroverted evidence establishes that the decedent’s

duties were those of a construction supervisor on a bridge

project at the time of his death. The trial court correctly

concluded that a cause of action based on the federal

maritime doctrine of seaworthiness was not available to

him.

Judgment affirmed.

Deen, P. J., and CARLEY, J., concur.

5a

APPENDIX B

COURT OF APPEALS

OF THE STATE OF GEORGIA

Atlanta, January 26, 1982

The Honorable Court of Appeals met pursuant to

adjournment.

The following order was passed:

No. 63096

Elizabeth F. Browning Exe’x

v.

B. F. Diamond Construction Co., Inc.

Upon consideration of the motion for a rehearing filed

in this case, it is ordered that it be hereby denied.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta, Jan. 26, 1982

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ Alton Hawk

Clerk

6a

APPENDIX C

SUPREME COURT OF GEORGIA

Clerk’s Office

Atlanta, March 11, 1982

Case No. 38478. Browning, Admrx. v. B. F. Diamond

Construction Co., Inc.

The Supreme Court today denied the writ of certiorari

in this case.

All the justices concur, except Hill, P. J., dissents.

Marshall, J., disqualified.

Very truly yours,

Mrs. Joline B. Williams, Clerk

7a

APPENDIX D

- SUPREME COURT OF GEORGIA

Clerk’s Office

Atlanta, March 26, 1982

Dear Sir:

The motion for a reconsideration was denied today:

Case No. 38478. Browning Admrx. v. B. F. Diamond

Construction Company, Inc.

Hill, P. J., dissents. Marshall, J., disqualified.

Yours very truly,

Mrs. Joline B. Williams, Clerk

8a

APPENDIX E

SUPERIOR COURT

FOR THE COUNTY OF MUSCOGEE

STATE OF GEORGIA

Civil Action File No. 85325

[Filed: July 23, 1981]

ELIZABETH BROWNING, as Widow, and

as Administratrix of the Estate of Joseph D.

Browing, deceased,

Plaintiff,

v.

B. F. DIAMOND CONSTRUCTION CO., INC.,

and STEVENS BROTHERS, INC.,

Defendants.

AMENDED ORDER

B. F. Diamonp Construction Co., INc., one of the

Defendants in the above cause, having moved the Court

for summary judgment, and the Plaintiff having amended

her complaint thereafter, which amendment has been

considered, and it appearing to the Court after consider-

ing the evidence before the Court, that there is no

genuine issue as to any material fact and the Defendant

B. F. Diamonp Construction Co., INC is entitled to a

judgment as a matter of law against the complaint of

Plaintiff claiming relief under the Jones Act, 46 U.S.C.A.

§ 688, and under the General Maritime Law, the Court

9a

expressly determines that there is no just reason for

delay in the entry of a final judgment and expressly

directs the entry of a final judgment in favor of B. F.

Diamond Construction Co., INc. against Plaintiff under

the Jones Act, 46 U.S.C_A. § 688, and under the General

Maritime Law.

ORDERED AND ADJUDGED, that summary judgment is

granted hereby in favor of B. F. DIAMOND CONSTRUCTION

Co., INc. against Plaintiff in respect to claims under

the Jones Act, 46 U.S.C.A. § 688, and under General

Maritime Law and Plaintiff shall take nothing from these

claims against B. F. DiamMonpD ConstRucTION Co., INC.

In respect to Plaintiff’s claim under 33 U.S.CA.

§ 905(b), the Defendant B. F. DIAMOND CONSTRUCTION

Co., Inc. shall plead thereto as it may be advised within

fifteen days thereof.

This 23rd day of July, 1981.

/s/ E. Mullins Whisnant

Judge, Superior Court

Muscogee County, Georgia

[Received: July 24, 1981]

10a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-5656

ELIZABETH BROWNING,

Widow of Joseph D. Browning,

Petitioner-Appellant,

v.

B. F. DIAMOND CONSTRUCTION COM-

PANY, U.S. FIDELITY AND CASUALTY

COMPANY OF NEW YORK, and DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPART-

MENT OF LABOR,

Respondents -Appellees.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BENEFITS REVIEW BOARD

May 17, 1982

Before Fay, VANCE and ARNOLD*, Circuit Judges.

* Honorable Richard S. Arnold, U.S. Circuit Judge for the Eighth

Circuit, sitting by designation.

lla

ARNOLD, Circuit Judge:

This is a “tion for review of a decision of the

Browning, wide. = § loseph D. Browning, benefits

under the Longshoremen’s and Harbor Workers’ Com-

pensation Act, 33 U.S.C. §§ 901 et seg. The issue is

whether Mr. Browning was a covered employee under

83 U.S.C. §903(a). The Board determined that he

was not, and we now reverse.

Browning was killed while employed as a rig fore-

man in charge of the operation of a crane barge. Mrs.

ing made a claim for benefits which was initially

L

Browning was employed by B. F. Diamond Construc-

12a

reinforcement rods. These steps were in preparation for

the pouring of concrete within the forms to construct

the bridge columns. Of course, an integral part of this

process was the unloading of the steel forms and other

materials from the steel barge. All this activity took

place in about twenty feet of water some 500 to 600

feet from shore.

The ALJ found, and it is not disputed, that on August

24, 1978, at the time of the fatal mishap, Browning

was standing atop a “footing” made up of pre-cast piles

driven into the riverbed. There were no cyewitnesses

to. the incident, but Browning was found later crushed

to death by one of the “cages,” which apparently broke

loose and fell on him. As for Browning’s activity at

this time, there was testimony that he was highlighting

certain engineering marks with spray paint to facilitate

the process of setting the metal forms around the “cages.”

il.

These facts are not in dispute. What is disputed is

the proper legal conclusion to be drawn about Browning’s

status as an employee under the Act. Essentially, one is

an “employee” if one is “engaged in maritime employ-

ment.” 33 U.S.C. § 902(3).' This employee status can

be based upon the maritime nature of the employment

! Section 2(3) of the Act, $3 U.S.C. § 902(3), reads:

13a

as a whole or upon the maritime nature of the claimant's

activity ai the time of the injury. Hullinghorst Industries,

Inc. v. Carroll, 650 F.2d 750, 754 (5th Cir. 1981), cert.

denied, _.. U.S. ——, 102 S.Ct. 1037, 71 L. Ed. 2d

—— (1982); Thibodaux v. Atlantic Richfield Co., 580

F.2d 841, 844 (5th Cir. 1978), cert. denied, 442 U.S.

909, 99 S. Ct. 2820, 61 L. Ed. 2d 274 (1979).

Jackson Co., 659 F.2d 54 (5th Cir. 1981), which she

contends cannot be distinguished from the case at bar.

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injured.” Jd. at 57. This conclusion was based on a

reading of Northeast Marine Terminal Co. v. Caputo,

53 L. Ed. 2d 320 (1977),

and the legislative history of the Act, which describe

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Gilliam, supra, 659 F.2d at 58 (footnote omitted).

Given this precedent we consider the case at bar to be

just as simple. Browing, at the time of his injury, was

Transcript of hearing before the ALJ, pp. 109-10. The

conclusion that Browning was engaged in longshoring

activities cannot ‘be avoided. It is enough that Browning

was “directly involved” with the unloading of a vessel at

the time of his injury. Jacksonville Shipyards, Inc. v.

Perdue, 539 F.2d 533, 539-40 (5th Cir. 1976), aff'd

sub nom. P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100

S.Ct. 328, 62 L. Ed. 2d 225 (1979). Therefore we

conclude that Browning was an employee within the

terms of the Act.

Two additional requirements must be met before a

claimant is entitled to coverage: (1) the claimant's

employer must qualify as an “employer” under 33 U.S.C.

§ 902(4), and (2) the injury must have occurred on

“navigable waters” as defined by 33 U.S.C. § 903 (a).

It is not disputed that Browning’s employer, B. F.

Diamond Construction Company, comes within the

terms of §902(4). And though the issue of whether

Browning was injured while on “navigable waters” was

16a

not explicitly decided by the ALJ or the Review Board,

no real question is raised on this point. Thus Browning

was a covered employee within the terms of the Act.

Accordingly, we REVERSE the decision of the Benefits

Review Board and REMAND this cause for further pro-

ceedings to consider the appropriate benefits to be

awarded.

It is so ordered.