Amicus Brief — Doucet v. Diamond M Drilling Co.

en N00. 82-1032

In the

Supreme Court of the United States

OCTOBER TERM. 1982

HERMAN J. DOUCET,

APPELLANT

VS.

DIAMOND M DRILLING COMPANY,

APPELLEE

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE AND

BRIEF FOR AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS ASSOCIATION

JAMES A. GEORGE

GEORGE AND GEORGE, LTD.

8110 Summa Drive

Baton Rouge, Louisiana 70809

(504) 769-3064

COUNSEL FOR

AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS

ASSOCIATION

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982 NO. 82-1032

HERMAN J. DOUCET,

APPELLANT

VS.

DIAMOND M DRILLING COMPANY,

APPELLEE

MOTION FOR LEAVE TO FILE BRIEF

FOR AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS ASSOCIATION

IN SUPPORT OF APPELLANT,

HERMAN J. DOUCET

Pursuant to Rule 36.1 of the Rules of this Court, the

Mississippi Trial Lawyers Association hereby moves for

leave of this court to file this Brief Amicus Curiae in sup-

port of the appellant, Herman J. Doucet.

The grounds for this motion are as follows:

1) Appellee, Diamond M Drilling Company, has re-

fused written consent to the filing of this amicus brief. Ac-

cordingly, this motion is being filed pursuant to Rule 36.1

of the Rules of this Court.

2) This case involves the question of what standard

of review should be applied by a federal court of appeals

reviewing the grant or denial of a judgment n.o.v. in a

longshoreman’s third-party negligence action against a

vessel owner pursuant to 33 U.S.C. §905(b).

3) The Mississippi Trial Lawyers Association is prin-

cipally composed of attorneys representing plaintiffs,

many of whom are personal injury litigants, and many of

whom will be affected by the outcome of this case.

4) The Mississippi Trial Lawyers Association be-

lieves that litigants in 33 U.S.C. §905(b) actions should

receive a uniform standard of review of grants or denials of

judgments n.o.v. throughout the circuit courts of appeals,

and that this standard should be consistent with the

Seventh Amendment of the United States Constitution.

Accordingly, the Mississippi Trial Lawyers Associa-

tion hereby moves this Court for leave to file the following

amicus brief in support of the position of appellant.

Respectfully submitted:

JAMES A. GEORGE

GEORGE AND GEORGE, LTD.

8110 Summa Drive

Baton Rouge, Louisiana 70809

(504) 769-3064

COUNSEL FOR AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS

ASSOCIATION

January ___, 1983

i

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS... . . . .. .. . .. . . i

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

INTEREST OF AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS ASSOCIATION.....1

SUMMARY OF ARGUMENT.........cccssssssssssesssesssessseesnsseees 2

Wo r...... 2

I. CONFLICTING STANDARDS UTILIZED BY

CIRCUIT COURTS OF APPEALS REVIEWING

GRANTS OR DENIALS OF JUDGMENT

N.O.V. IN 33 U.S.C. §905(b) NEGLIGENCE

ACTIONS OBSTRUCT BOTH CONGRESS’

INTENT OF UNIFORMITY IN THE AP-

PLICATION OF THE LONGSHOREMEN’S

AND HARBOR WORKERS’ COMPEN-

SATION ACT AND THE UNIFORM

APPLICATION OF THE NEGLIGENCE

STANDARD PROVIDED BY THIS

COURT IN SCINDIA STEAM NAVIGATION

CO., LTD., V. DE LOS SANTOS. . ... 2

A. Conflicting Standards of Review are

Utilized by Various Circuit Courts of

Appeals Reviewing Grants or Denials of

Judgments N. O. V. in 8905 0b) Actions. . . 4

B. The Legislative History of the Long -

shoremen’s and Harbor Workers’ Compen-

sation Act Shows That Application of

Conflicting Standards of Review By

Various Courts of Appeals Violates

The Congress’ Mandate. . .. . . . . . 12

II. THE SEVENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION MAN-

DATES THAT THIS COURT ESTABLISH

A STANDARD OF REVIEW IN §905(b)

CASES FOR ALL OF THE CIRCUITS TO

ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Armstrong v. Commerce Tankers Corp.,

423 F.2d 957 (2d Cir. 1970), cert. denied,

400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970)............. 7

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,

369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962),

re-hearing denied 369 U.S. 882, 82 S.Ct. 1137,

8 L.Ed.2d 284, motion denied 371 U.S. 803, 83

Sem. 16, 17

Baltimore & Carolina Line v. Redman,

295 U.S. 654, 55 S.Ct. 890, 79 L. Ed. 1636 (1935). 15, 16

Boeing Company v. Shipman,

411 F. 2d 365 (5th Cir. 1981). . . . . . . 5, 6. 8

Byrd v. Blue Ridge Rural Elec. Cooperative,

356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958)......... 17

Daddi v. United Overseas Export Lines, Inc., etc.,

674 F.2d 175 (2d Cir. 1982). . . . . . . . . . . .es. 9

Doucet v. Diamond M Drilling Company,

683 F. 2d 886 (5th Cir. 1982). . . 5, 6, 9, 11, 16, 17

Galloway v. United States,

319 U.S. 372, 63 S.Ct. 1077, 87 L. Ed. 1458 (1949)....... 15

Kunz v. Utah Power and Light Co.,

526 F.2d 500 (Oth Cir. 1975). . . . . . ee 11

Lemon v. Bank Lines, Ltd.,

656 F. 2d 110 (5th Cir. 1981). . . .. .. .seiesissesvetesees 6

Mattivi v. South African Marine Corp., “Huguenot”,

618 F. ad 163 (2d Cir. 1980). . . 6. 7. 8, 9. 10, 11. 15

Mendel Schwimmer d/b/a Supersonic Electronics Co. v.

Sony Corporation of America, 677 F. 2d 946 (2d

Cir. 1982), cert. denied U.S. S.Ct. (Nov. 8, 1982,

Docket No. 82-277).....sssssssssssersssesesseessssessnseessenses 12,14

McCormack v. Noble Drilling Corporation,

608 F. 2d 169 (5th Cir. 1979). . . . .. 5 at n. 10

Neely v. Martin K. Eby Construction Co.,

386 U.S. 317, 87 S.Ct. 1072, 18 L. Ed. 2d 75 (1967). . 15

iii

Robinson v. Zapata Corp.,

664 F. 2d 45 (5th Cir. 1981). . . . . . . . . . .. . 8

Scindia Steam Navigation Co., Ltd. v. De Los Santos,

451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1

Turner v. Japan Lines, Ltd.,

651 F.2d 1300 (9th Cir. 1981), cert. denied

U.S. S.Ct. (Nov. 1, 1982, Docket No. 81-2349)............. 11

Venture Technology, Inc. v. National Fuel Gas

Distribution Corporation, et al., — F.2d

(2d Cir. 1982), cert. denied U.S. S.Ct. (Nov. 8,

1982, Docket No. 82-362). . . . . .. . . . e. 12

CONGRESSIONAL PROCEEDINGS

H.R. Rep. No. 92-1441, 92nd Congress,

% 3 at n. 1

S. Rep. No. 92-1125, 92nd Congress,

0 A 3, 4, 12, 13, 14

CONSTITUTIONS

United States Constitution, Amendment VI1.......... i, 15,16

STATUTES

83 U.S.C. $001-O50........sccccssscersssreecsescesseees i, 2, 3, 4, 12, 13, 15

e passim

re iachascnscasithicccredudidesbaibekncdsssuselaspbidhessaataies 7, 8,9, 10

TREATISES

9 Wright & Miller, Federal Practice & Procedure. ... 12

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982 NO. 82-1032

HERMAN J. DOUCET,

APPELLANT

VS.

DIAMOND M DRILLING COMPANY,

APPELLEE

AMICUS CURIAE BRIEF

STATEMENT OF INTEREST OF AMICUS CURIAE

The Mississippi Trial Lawyers Association is a non-

profit organization composed of approximately eight hun-

dred members of the Mississippi State Bar Association,

practicing within the territorial jurisdiction of the United

States Court of Appeals for the Fifth Circuit.

The filing of this brief reflects the concern of amicus

that two of the stated purposes of the Association, to

preserve the adversary system of justice and to protect the

right of trial by jury, of those who are damaged in person

and in property, will be subverted if this Court does not

resolve the conflicting standards of review utilized by

various federal courts of appeals reviewing grants and

denials of judgments n.o.v. in 33 U.S.C. §905(b) actions.

Amicus has been denied the written consent of

respondent, Diamond M Drilling Company, to file this

brief.

SUMMARY OF THE ARGUMENT

Appellant in this action contends that the Fifth Cir-

cuit Court of Appeals epplied an improper standard of

review when it reversed the trial court's denial of judgment

n. o. v. in this case. Amicus will argue in this brief that this

court should provide the federal courts of appeals with a

uniform standard of review to be applied to grants or

denials of judgments n.o.v. in longshoremen’s negligence

actions pursuant to 33 U.S.C. §905(b).

ARGUMENT

I, CONFLICTING STANDARDS UTILIZED BY CIR-

CUIT COURTS OF APPEALS REVIEWING GRANTS

OR DENIALS OF JUDGMENTS N. O. V. IN 33 U.S.C.

§905(b) NEGLIGENCE ACTIONS OBSTRUCT BOTH

CONGRESS’ INTENT OF UNIFORMITY IN THE AP-

PLICATION OF THE LONGSHOREMEN'S AND HAR-

BOR WORKERS’ COMPENSATION ACT AND THE

UNIFORM APPLICATION OF THE NEGLIGENCE

STANDARD PROVIDED BY THIS COURT IN SCIN-

DIA STEAM NAVIGATION CO, LD, V. DE LOS

SANTOS.

The Longshoremen's and Harbor Workers’ Compen-

sation Act, 33 U.S.C. §§901-950 (hereinafter the Act“),

provides in its §905(b) (hereinafter the ‘'§905(b) action“)

that longshoremen may sue a vessel owner for injury

“caused by the negligence of a vessel“. The Congress’

primary objective in amending the Act in 1972 with regard

to third-party actions against a vessel was to eliminate the

3

absolute liability of the vessel towards the longshoreman

on the basis of ‘‘unseaworthiness"’, a ‘‘non-delegable duty

or the like.! However, persons to whom compensation is

payable under the Act retain the right to recover damages

for negligence against the vessel. . 2 In the lending

Supreme Court decision on §905(b) actions, Scindia Steam

Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101

S.Ct. 1614, 68 L.Ed.2d 1 (1981), this Court stated that

the longshoremen’s] right to recover from the shipowner

for negligence was preserved in §905(b), which provided a

statutory negligence action against the ship e (emphasis

added). Therefore, as the Senate Committee on Labor and

Public Welfare (hereinafter the Senate Committee“)

stated in its Senate Report, the vessel's liability is to be

based on its own negligence....'’4

Scindia, supra, adopted a standard of negligence to

be applied in §905(b) netions. b This Court accepted that

the vessel may be liable if it actively involves itself in the

cargo operations and negligently injures a longshoreman

or if it fails to exercise due care to avoid exposing

longshoremen to harm from hazards they may encounter in

areas, or from equipment, under the active control of the

vessel during the stevedoring operation. 6 Although this

1 8. Rep. No. 92-1125 92nd Congress, 2d Session, at 10 (1972)

(hereinafter Sonate Rep.'’) (as noted in Scindia Steam Navigation Co, v,

De Los Santos, 461 U.S. 156, 101 8.Ct, 1614, 68 L. Ed. 2d 1 (1981), H. R.

Rep. No. 92-1441 92nd Congress, 2d Session (1972) is in all relevant

aspects identical to the Senate Report.)

2 Senate Rep., at 10,

3 451 U.S., at 166.

4 Senate Rep., at 11.

5 451 U.S,, at 167, 172, 176, 176.

8 74, at 167.

4

statement of the standard of negligence dealt with cargo

operations, it should be applicable to all longshore workers

within the coverage of the Act, (for example, a casing crew

member, such as Doucet) where the vessel ‘actively in-

volves itself“ in the longshore operations and fails to ex-

ercise due care to avoid exposing longshoremen to harm

from hazards...."7 occurring during such operations.

However, Scindia's holding, intended to provide a

uniform standard of negligence in §905(b) actions, is

emasculated when the various federal courts of appeals ap-

ply diverse standards of review to the sufficiency of the

evidence necessary to establish negligence. Such a

haphazard application of varying standards of review to

the Scindia negligence standard also violates the policy of

the Congress in enacting the 1972 Amendments to the Act.

The Senate Committee stated its intent “that the

negligence remedy authorized in the bill shall [not] be ap-

plied differently in different ports depending on the law of

the State in which the port may be located.“ 8 Such legal

questions brought under the Act shall be determined as a

matter of federal law. 9 The Congress has thus stated its

intent that application of the Act shall be uniform

throughout the scope of its coverage.

A. CONFLICTING STANDARDS OF REVIEW ARE

UTILIZED BY VARIOUS CIRCUIT COURTS OF Ap.

PEALS REVIEWING GRANTS OR DENIALS OF

JUDGMENTS N. O. v. IN §905(b) ACTIONS,

At least three different standards of review are

"Id.

8 Senate Rep., at 12.

9 1

5

applied in §905(b) actions by the federal courts of appeals.

Doucet v. Diamond M Drilling Co., 683 F. 2d 886 (5th

Cir. 1982) is the latest enunciation of the standard of

review utilized by the Fifth Circuit in §905(b) actions. The

Doucet court stated that the rule of Boeing Company v.

Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc) concerning

the appellate standard of review for the sufficiency of the

evidence in such cases was firmly establish . 10 In the

second footnote of its opinion, the Doucet Court stated

that:

“On motions for directed verdict and for judg-

ment notwithstanding the verdict the Court

should consider all of the evidence—not just that

evidence which supports the non-mover's case—

but in the light and with all reasonable inferences

most favorable to the party opposed to the mo-

tion...A mere scintilla of evidence is insufficient

to present a question for the jury. The motions for

directed verdict and judgment n.o.v. should not

be decided by which side has the better case, nor

should they be granted only when there is a com-

plete absence of probative facts to support a jury

verdict, There must be a conflict in substantial

evidence to create a jury question. However, it is

the function of the jury as the traditional finder

of the facts, and not the court, to weigh conflict-

ing evidence and inferences, and determine 9

credibility of witnesses (footnote omitted).

(emphasis added).

Ironically, the Fifth Circuit itself appears to apply

its own Boeing standard of review for §905(b) actions dif-

10 683 F.2d, at 880 quoting McCormack v. Noble Drilling Corpora-

tion, 608 F.2d 169 (5th Cir. 1979).

11 74, at 889 int. 2.

ferently on different occasions. Contrary to the above

Doucet court's reading of Boeing, the Fifth Circuit panel in

Lemon v. Bank Lines, Ltd., 656 F.2d 110 (5th Cir. 1981)

citing Boeing, apparently examined only the evidence sup-

porting the jury’s verdict in a §905(b) action, ie. the

evidence in support of the non-movant.!2 Lemon reversed

the trial court’s grant of judgment n.o.v. for the defendant

vessel owner. It seems, then, that the Fifth Circuit has

rendered conflicting decisions applying its own standard of

review, that stated in Boeing Company v. Shipman, supra.

The Second Circuit’s standard for the review of the

sufficiency of the evidence in §905(b) actions is at odds

with the Fifth Circuit standard. In Mattivi v. South

African Marine Corp., “Huguenot”, 618 F.2d 163 (2d Cir.

1980) the Court states that:

“The trial court should grant a judgment n.o.v.

only when (1) there is such a complete absence of

evidence supporting the verdict that the jury's

findings could only have been the result of sheer

surmise and conjecture, or (2) there is such an

overwhelming amount of evidence in favor of the

movant that reasonable and fair minded men

could not arrive at a verdict against him. 13

Mattivi, applying the above standard to a §905(b)

IZ in this case, the jury found that the defendant shipowner was

negligent in the method and manner of stowing the cargo and that the

negligence proximately contributed to the plaintiff's injury. The

evidence supporting their verdict [for the non-movant] included the fact

that the chief mate had actual knowledge of the improper loading tech-

nique and failed to take actions to either correct the stowage or warn the

plaintiff..." (emphasis added). 656 F.2d, at 116.

13 618 F.2d, at 168.

7

action, relies upon Judge Anderson's opinion in Armstrong

v. Commerce Tankers Corp., 423 F.2d 957 (2d Cir. 1970),

cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65

(1970).

Armstrong affirmed a judgment n.o.v. in favor of a

defendant shipowner and agent in a negligence action

brought pursuant to the Jones Act, 46 U.S.C. 688 et seq.

(hereinafter the Jones Act“). Affirming the trial court,

Judge Anderson stated that the evidence must be viewed

in the light most favorable to the party other than the mo-

vant. The motion [for directed verdict or judgment n. o. v.]

will be granted only if (1) there is a complete absence of pro-

bative evidence to support a verdict for the non-movant

„1 and that where “ ‘it is apparent that the jury’s find-

ing that some act of negligence was performed by the plain-

tiff's shipmates was sheer surmise and conjecture’ "15 the

verdict of the jury will be set aside. Thus, the Mattivi

Court, reviewing a §905(b) action, looked to a Jones Act ac-

tion for the standard of review to be used to determine the

sufficiency of the evidence. Mattivi applied the stricter

standard of review traditionally used in Jones Act actions

which requires a complete absence of probative evidence

to support a verdict for the non-· movant. . 16 before a jury

verdict will be set aside.

Jones Act actions are based on a statutory negli-

gence cause of action,!7 as are §905(b) actions, The Mattivi

Court, therefore, seems to equate the standard of review

14 Armstrong v. Commerce Tankers Corp., supra, at 959.

15 Td, at 960.

16 Td, at 959.

17 46 U.S.C. §688.

8

for the sufficiency of evidence in §905(b) actions with those

of Jones Act actions (both statutory negligence actions). 18

The Fifth Circuit, on the other hand, applies two distinct

standards when reviewing the sufficiency of the evidence

in §905(b) actions and in Jones Act actions. As previously

stated, the Fifth Circuit standard of review in §905(b) cases

is “firmly established” by Boeing Company v. Shipman,

supra. In Robinson v. Zapata Corp., 664 F. 2d 45, (5th Cir.

1981), a Jones Act action, the Fifth Circuit states that ‘‘the

standard to be applied to a Jones Act claim is more

stringent. The [trial] court may direct a verdict or grant a

judgment n.o.v. on a Jones Act claim only when there is a

complete absence of probative facts supporting the non-

ee position. (emphasis by the Court) [citations omit-

ted.

Hence, the stricter standard of review applied by the

Second and Fifth Circuits in requiring a ‘‘complete absence

of probative evidence to support a verdict 20 before a

directed verdict or judgment n.o.v. will be granted in Jones

Act actions is also applied to §905(b) actions by the Second

Circuit. This is contrary to the Fifth Circuit standard of

review for §905(b) actions stated in Boeing and Doucet

which require examination of all of the evidence in the light

most favorable to the non-movant and if there is substan-

tial evidence opposed to the motions, that is, evidence of

such quality and weight that reasonable and fair-minded

men in the exercise of impartial judgment might reach dif-

ferent conclusions, the motions should be denied, and the

18 618 F.2d, at 168. See text at notes 13-16,

19 664 F.2d, at 47.

20 4, and 423 F.2d, at 959.

9

case submitted to the jury. 21

The Second and Fifth Circuits are thus applying in-

consistent standards of review in §905(b) actions. The

Second Circuit allows a directed verdict or judgment n.o.v.

only when there is a “complete absence of probative

evidence to support a verdict”’.22 In the Fifth Circuit, the

standard of reviewing decisions on these motions is that

only if there is substantial evidence opposed to the mo-

tion” will such motion be denied. 28 “A mere scintilla of

evidence is insufficient to present a question for the

jury 24 in the Fifth Circuit.

That the Serond Circuit requires a stricter standard

of review in §905(b) cases than does the Fifth Circuit,

because the former applies the traditional Jones Act stand-

ard to §905(b) actions, is further illustrated by the recent

case of Dabbi v. United Overseas Export Lines, Inc., etc.,

674 F.2d 175 (2d Cir. 1982). There, the Second Circuit af-

firmed a judgment n.o.v. for the defendant vessel owner in

a §905(b) action where the trial court had ruled that ‘‘on the

basis of the uncontroverted evidence, [the plaintiff's] ver-

sion of the accident was a physical impossibility. 25 The

Court went on to say that in such a case, reasonable and

fair-minded men could only find for defendant.“ 26 citing

21 83 F. 2d. at 889 fnt. 2.

22 Mattivi v. South African Marine Corp, “Huguenot”, supra, at

167-168 citing Armstrong v. Commerce Tankers Corp., supra, at 959.

23 Doucet v. Diamond M Drilling Co.,"supra, at 889 fnt. 2.

25 674 F.2d, at 177.

26 74

10

Mattivi, supra. Thus, when evidence presented by the non-

movant is physically impossible“, it seems that there is a

“complete absence of probative evidence to support a ver-

diet“ and the Second Circuit will necessarily allow a judg-

ment n.0.v.

At first blush, the standards of review applied by the

Second and Fifth Circuits do not appear to be in conflict

because of their similar phraseology. The second prong of

the Mattivi standard of review states that or (2) [if] there

is such an overwhelming amount of evidence in favor of the

movant that reasonable and fair-minded men could not ar-

rive at a verdict against him“ 27 the directed verdict or

judgment n. o. v. will be granted. This is very similar to the

Fifth Circuit’s requirement of more than a mere scintilla

of evidence” to deny such motions, as a mere scintilla“

would not be enough evidence in the Second Circuit to

counterbalance the “‘overwhelming evidence in favor of the

movant...”, entitling movant to the directed verdict or

judgment n. o. v.

However, the Mattivi court stated that the trial

court...correctly concluded that given the complete

absence of substantial evidence supporting the verdict the

jury’s finding could only have been the result of sheer sur-

mise and conjecture.” (emphasis added).28 Thus, Mattivi

utilized only the first alternative of its two-pronged stand-

ard of review in a §905(b) action, which is the stricter stand-

ard of review used by both the Second and Fifth Circuits in

reviewing the evidence in Jones Act actions. Therefore, the

use of this standard of review in Mattivi implies that

had there been evidence to support the verdict, the entry of

27 618 F.2d, at 168.

28 4, at 169.

11

judgment n. o. v. would have been reversed by the Second

Circuit. Conflicting standards of review are utilized by the

Second and Fifth Circuits, despite some ostensible

similarities in the phrasing of the standards.

Finally, the Ninth Circuit offers a third standard of

review in §905(b) actions. In Turner v. Japan Lines, Ltd.,

651 F.2d 1300 (9th Cir. 1981), cert. denied U.S. S.Ct. (Nov.

1, 1982, Docket No. 81-2349), the Ninth Circuit stated:

“This court will not disturb a jury’s verdict ‘unless we find

that the evidence was insufficient as a matter of law to sup-

port [the] verdict—that the evidence was such that no

reasonable man would accept it as adequate to establish

the existence of each fact essential to liability.’ [quoting

from] Kunz v. Utah Power and Light Co., 526 F.2d 500, 504

(9th Cir. 1975).“29 The Court went on to hold “that the

evidence taken together was sufficient to support the

jury’s verdict for plaintiff, and that the magistrate erred in

giving judgment n.o.v. to defendants [vessel owners]. 30

Thus, the Ninth Circuit utilizes a strict standard of review

for §905(b) cases in that the evidence must be such that

no reasonable man would accept it“ before the Court will

allow a jury verdict to be negated, in contrast to the

relatively broader standard applied by the Fifth Circuit in

Doucet, supra, and the apparently stricter standard ap-

plied by the Second Circuit in Mattivi, supra.

Conflicts between the Circuit Courts as to the stand-

29 651 F.2d, at 1304.

30 7a, at 1305.

12

ard of reviewing the sufficiency of the evidence necessary

to support a jury’s verdict are not limited to §905(b) ac-

tions. As evidenced by two very recent cases where cer-

tiorari was denied by this Court, this conflict is a signifi-

cant problem in other areas of law as well. Justice White

succinctly explained this in his dissent to the denial of cer-

tiorari in two cases decided on the same date, Mendel

Schwimmer d/b/a Supersonic Electronics Co. v. Sony Cor

poration of America, 677 F.2d 946 (2d Cir. 1982), cert.

denied, U.S. S.Ct. (Nov. 8, 1982, Docket No. 82-277) and

Venture Technology, Inc. v. National Fuel Gas Distribu-

tion Corporation, et al, — F.2d __ (2d Cir. 1982), cert.

denied U.S. S.Ct. (Nov. 8, 1982, Docket No. 82-362). Justice

White stated: Thus, the federal courts of appeals follow

three different approaches to determining whether

evidence is sufficient to create a jury issue. See 9 Wright &

Miller, Federal Practice & Procedure §2529, at 572.

Because the scope of review will often be influential, if not

dispositive, of a motion for judgment n.o.v., this disagree-

ment among the federal courts of appeals is of far more

than academic interest.” (emphasis added). 31

B. THE LEGISLATIVE HISTORY OF THE LONG-

SHOREMEN’S AND HARBOR WORKERS’ COMPEN-

SATION ACT SHOWS THAT APPLICATION OF CON-

FLICTING STANDARDS OF REVIEW BY VARIOUS

COURTS OF APPEALS VIOLATES THE CONGRESS’

MANDATE,

The 1972 Amendments to the Act were part of a

J Mendel Schwimmer d/b/a Supersonic Electronics Co. v. Sony

Corporation of America, 677 F. 2d 946 (2d Cir. 1982), cert. denied U.S.

S.Ct. (Nov. 8, 1982, Docket No. 82-277) (White, J., dissenting); Venture

Technology, Inc. u. National Fuel Gas Distribution Corporation, et al,

F.2d — (2d Cir. 1982), cert. denied U.S. S.Ct. (Nov. 8, 1982, Docket No.

82-362) (White, J., dissenting).

13

comprehensive plan to upgrade the benefits, extend

coverage to protect additional workers, provide a specified

cause of action for damages against third parties, and to

promulgate necessary administrative reforms. 32 The

Senate Committee emphasized in its report to the 1972

Amendments that safety to the longshoreman was a prime

motivation for the amendments. “It is the Committee's

view that every appropriate means be applied toward im-

proving the tragic and intolerable conditions which take

such a heavy toll upon workers’ lives and bodies in this in-

dustry...[which includes] a workmen’s compensation

system which maximizes industry’s motivation to bring

about such an improvement. 33 The Senate Committee in-

tended and provided that longshoremen retain the right

to recover damages for negligence against the vessel 4

The Committee went on to say that

ſplermitting actions against the vessel based on

negligence will meet the objective of encouraging

safety because the vessel will still be required to

exercise the same care as a land-based person in

providing a safe place to work. Thus, nothing in

this bill is intended to derogate from the vessel’s

responsibility to take appropriate corrective ac-

tion where it knows or should have known about

a dangerous condition’’.35

Therefore, §905(b), as added to the Act in 1972, was a reac-

tion to “intolerable conditions“ in the industry which

Ws. Rep. No. 92-1125, 92nd Congress, 2d Session, at 1 (1972). See

also fnt. 1, supra, of text.

33 Senate Rep., at 2.

344, at 10.

35 74.

14

would insure that longshoremen are to retain the right to

recover” for a vessel’s negligence which causes them in-

jury. Finally, the Senate Committee stated that: the

negligence remedy authorized in the bill shall [not] be ap-

plied differently in different ports depending on the law of

the State in which the port may be located. The Committee

intends that legal questions which may arise in actions

brought under these provisions of the law shall be deter-

mined as a matter of federal law“. 36

Thus, because of the nature of the longshoreman’s

occupation which remains one of the most hazardous

types of occupations...""37 and the expressed purpose of

the Committee to improve “intolerable conditions’’, this

Court endeavored in its landmark decision in Scindia,

supra, to define what due care is owed to the longshoreman

by the vessel. However, even though the question of the

due care owed by the vessel is presumably settled by Scin-

dia, the application of its principles have been greatly af-

fected by the conflict between the federal courts of appeals

as to what standard of review should be utilized in deter-

mining whether the evidence adduced proves negligence of

the vessel. A reiteration of Justice White’s dissent

previously quoted from concisely states the significance of

this issue: ‘‘Because the scope of review will often be in-

fluential, if not dispositive, of a motion for judgment n. o. v.,

this disagreement among the federal courts of appeals is of

far more than academic interest“. 38

88 Id, at 12

37 4

38 Mendel Schwimmer d/b/a Supersonic Electronics Co. v. Sony

Corporation of America, supra and Venture Technology, Inc. v. National

Fuel Gas Distribution Corporation, et al, supra, at note 31.

15

It is respectfully submitted that in order to further

the policies of Congress in amending the Act, and to

establish a uniform application of Scindia among the cir-

cuits, this Court should resolve the conflict among the

federal courts of appeals as to the standard of review in

§905(b) actions. A review of the cases previously cited

demonstrating the conflict among the federal courts of ap-

peals reveals the varying outcomes of longshoremen’s

third-party actions against vessels and demonstrates the

need for this Court to provide a uniform standard of review

in §905(b) actions.

II. THE SEVENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION MANDATES THAT THIS

COURT ESTABLISH A STANDARD OF REVIEW IN

§905(b) CASES FOR ALL OF THE CIRCUITS TO

FOLLOW.

The Seventh Amendment to the Constitution of the

United States provides: In suits at common law, where

the value of the controversy shall exceed twenty dollars,

the right of trial by jury shall be preserved, and no fact

tried by a jury shall be otherwise re-examined in any Court

of the United States, than according to the rules of the

common law.“ A judgment n.o.v., although it usually re-

quires a re-examination of the record by a Court of the

United States“, is not a violation of the right to trial by

jury so as to be made unconstitutional by this amendment.

As the Mattivi panel noted: The constitutionality of

directed verdicts and judgments n. o. v. is well established.

Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87

L.Ed. 1458 (1943), settled the constitutionality of directed

verdicts, and Baltimore & Carolina Line v. Redman, 295

U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935), as sup-

plemented by Neely v. Martin K. Eby Construction Co.,

16

386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967),

established the constitutionality of judgment n. O. v. “9

However, this is not to say that the federal courts .

appeals can re-determine facts found by the jury or

substitute their own judgment for that of the jury on fact

questions, As the Doucet court itself reiterated: ‘‘ However,

it is the function of the jury as the traditional finder of the

facts, and not the Court, to weigh conflicting evidence and

inferences, and determine the credibility of witnesses (foot-

note omitted). 40

This Court has time and again affirmed that it is for

the jury to decide questions of fact and it is for the courts

to decide questions of law. Indeed in Baltimore & Carolina

Line, Inc. u. Redman, Justice Van Devanter stated: The

aim of the [seventh] amendment, as this court has held, is

to,..retain the common-law distinction between the prov-

ince of the court and that of the jury, whereby, ... issues of

law are to be resolved by the court and issues of fact are to

be determined by the jury under ee instructions

by the court [footnotes omitted]’’.4

In Atlantic & Gulf Stevedores, Inc. b. Ellerman

Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798

(1962), re-hearing denied 369 U.S, 882, 82 S.Ct. 1137, 8

L.Ed.2d 284, motion denied 371 U.S. 803, 83 S.Ct. 15, 9

L. Ed. 2d 51 (a negligence action by a longshoreman against

a vessel owner now established by statute as a ‘'§905(b)

action"), this Court affirmatively enunciated that neither

39 618 F.2d, at 167 n.3.

40 683 F.2d, at 890 n. 2.

41 295 U.., at 657, 65 S.Ct., at 891.

17

[the Supreme Court] nor the Court of Appeals can re-deter-

mine facts found by the jury any more than the District

Court can pre-determine them...",42 based on the seventh

amendment's admonition that no fact tried by a jury,

shall be otherwise re-examined...."’

Thus, the seventh amendment “fashions ‘the federal

policy favoring jury decisions of disputed fact question.’

Byrd v. Blue Ridge Rural Elec, Cooperative, 356 U.S. 525,

638, 539, 78 S.Ct. 893, 901, 2 L.Ed.2d 963.43

Therefore, an appellate court should not substitute

its own judgment on questions of fact for that of the jury's

judgment where there is any evidence to support a jury's

verdict. To do so would require the court to judge credibili-

ty and weigh evidence, a function reserved to the jury by

the seventh amendment.

This Court should adopt a standard of review ap-

plicable to grants or denials of judgments n. o. v. in §905(b)

actions requiring the jury's verdict to be upheld whenever

there is any evidence to support it. Without such a uniform

standard of review, federal courts of appeals utilizing a

broader standard of review, such as that applied in Doucet,

invade the province of the jury reserved to it by the

seventh amendment.

CONCLUSION

For the reasons stated, amicus respectfully prays

that the judgment of the Fifth Circuit Court of Appeals

42 500 U.S., at 358, 359, 82 S.Ct., at 783,

43 7/4, at 360, Id, at 784,

18

be reversed and that the judgment of the trial court be re-

instated,

Respectfully submitted:

JAMES A, GEORGE

GEORGE AND GEORGE, LTD.

8110 Summa Drive

Baton Rouge, Louisiana 70809

(504) 769-3064

COUNSEL FOR AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS

ASSOCIATION

January) 198.

19

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above and

foregoing has this date been forwarded to all attorneys of

record by depositing the same in the United States Mail,

first-class postage prepaid and properly addressed to the

said attorneys.

Baton Rouge, Louisiana this

1983.

day of January,

JAMES A. GEORGE

GEORGE AND GEORGE, LTD.

8110 Summa Drive

Baton Rouge, Louisiana 70809

(504) 769-3064

COUNSEL FOR AMICUS CURIAE

MISSISSIPPI TRIAL LAWYERS

ASSOCIATION