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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 837

## Text

Office - - Supreme
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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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16

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0223%3A1. Public record. Not legal advice.