Amicus Brief — South Street Seaport Museum v. McCarthy

ge No. 83-851

J IN THE

Supreme Court of the United States

OcTOBER TERM 1983

SOUTH STREET SEAPORT MUSEUM,

as Owner of the Bark PEKING,

Petitioner,

—_Vy—

CraiG McCartny,

Respondent,

— and —

THE STATE INSURANCE FUND and NORTHBROOK EXCESS AND

SURPLUS INSURANCE COMPANY,

Respondents.

MOTION OF NATIONAL MARITIME HISTORICAL

SOCIETY AND NATIONAL MARITIME MUSEUM

ASSOCIATION FOR LEAVE TO FILE A BRIEF AMICI

CURIAE IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

ALAN G. Cuoarte, Counsel of Record

JosePH F. Moore, Jr.

Wayne W. SUOJANEN

PeprperR, HAMILTON & SCHEETZ

Counsel for National Maritime

Historical Society

2001 The Fidelity Building

123 South Broad Street

Philadelphia, PA 19109

(215) 893-3000

RicHarD C. BrautiGAM, Counsel of Record

Mark O. KASANIN

McCutcnHen, Dove, Brown & ENERSEN

Counsel for National Maritime

Museum Association

3 Embarcadero Center

San Francisco, CA 94111

(415) 393-2000

A ee _ ee a SRS Se nn ee

TABLE OF CONTENTS

PAGE

MEINE tcc vue kv scGek hucw sD iwh cepine eke oe 6 eens I

I ib nn hdd ea rk ORES A TERE RE Re Ill

SE PUNE W RIOR oo eh einnicnn ccs ompe cele ees IV

MOTION OF NATIONAL MARITIME HISTORICAL

SOCIETY AND NATIONAL MARITIME MUSEUM

ASSOCIATION FOR LEAVE TO FILE A BRIEF AMICI

CURIAE IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Amici Curiae, National Maritime Historical Society and Na-

tional Maritime Museum Association, hereby move pursuant

to United State Supreme Court Rule 36.1 for leave to file a

brief amici curiae in support of the Petition for Writ of Cer-

tiorari to the United States Court of Appeals for the Second

Circuit which has been filed in this matter by Petitioner, South

Street Seaport Museum. A copy of the proposed brief is at-

tached hereto.

In support of their Motion, National Maritime Historical

Society and National Maritime Museum Association represent

as follows:

1. A Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit (the “Petition” ) was

docketed in this matter on November 21, 1983, by Peti-

tioner, South Street Seaport Museum.

2. Amici Curiae, National Maritime Historical Society and

National Maritime Museum Association, have a substantial

interest in the Petition and request that this Court grant a

Writ for the reasons set forth in the attached brief.

3. Respondent, Craig McCarthy, has refused consent for

National Maritime Historical Society and National Maritime

Museum Association to file a brief amici curiae in support of

the Petition.

4. Where, as here, Respondent has refused consent, United

States Supreme Court Rule 36.1 provides that a motion for

leave to file a brief amici curiae supporting a Petition for

Writ of Certiorari may be filed on or before the date that

Respondent's brief in opposition to the Petition must be

filed.

II

5. Respondent, Craig McCarthy’s, briet in opposition to

the Petition must be filed within thirty (30) days of receipt

of the Petition. United States Supreme Court Rule 22. i

6. The attorney for Respondent, Craig McCarthy, re-

ceived the Petition on November 28, 1983, as per the letter

attached as Exhibit “A” hereto, so Respondent's brief in

Opposition to the Petition must be filed within thirty (30)

days thereof, by December 28, 1983.

7. This motion is timely because it was filed on or before

December 28, 1983.

WHEREFORE, National Maritime Historical Society and Na-

tional Maritime Museum Association request the Court to grant

their motion for leave to file the attached Brief Amici Curiae

in support of the Petition.

Respectfully submitted,

ALAN G. CuHoate, Counsel of Record

JosepH F. Moore, JR.

WaYNE W. SUOJANEN

Pepper, HAMILTON & SCHEETZ

Counsel for National Maritime

Historical Society

2001 The Fidelity Building

123 South Broad Street

Philadelphia, PA 19109

(215) 893-3000

RICHARD C. BRAUTIGAM, Counsel of Record

Mark O. KASANIN

McCutcuen, Doy_e, BROWN & ENERSEN

Counsel for National Maritime

Museum Association

3 Embarcadero Center

San Francisco, CA 94111

(415) 393-2000

DAHLEN & GLOVSKY

SeveNTyY. Five TEDERAI

Boston. MASSACHUSETTS O2110

a CHeen Sane

ag ee id : Decem 19, 1983

Federal Express

Wayne W. Soujanen, Esquir

Pepper, Hamilton & Schnee

123 South Broad Street

Philadelphia, Pennsylvania 19109

Re: South Street Seaport v. McCa

Dear Wayne:

You have inguired to when t

for certiorari was receive n this of

It is my best reco tion that

received on Monday, Novemb 8, which

view of the New England o ance of

As I advised you by telephone,

your filing as amicus cur: a brief supporting the

oo" So. ae

Seaport's petition, Dut I no ¢

in any event have too much respect

big deal out of it.

RLD: la

ce: Francis X. Byrn, Esquire

Raymond C. Green, Esquire

EXHIBIT “A”

Yours very truly,

s

—

ee LL. Dahlen

he Seaport's

I do not assent to

petition

ractical way to object and

for your fiym to make a

REC'D DEC 20 1983

No. 83-851 IV

IN THE

Supreme Court of the Gnited States

OcToOBER TERM 1983

SOUTH STREET SEAPORT MUSEUM,

as Owner of the Bark PEKING.

Petitioner,

nae

CraiG McCartTuHy.

Respondent,

— and —

THE STATE INSURANCE FUND and NORTHBROOK EXCESS AND

SURPLUS INSURANCE COMPANY,

Respondents.

BRIEF AMICI CURIAE OF NATIONAL MARITIME

HISTORICAL SOCIETY AND NATIONAL MARITIME

MUSEUM ASSOCIATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

ALAN G. Cuoate, Counsel of Record

JoserH F. Moore, Jr.

WayNE W. SUOJANEN

Pepper, HAMILTON & SCHEETZ

Counsel for National Maritime

Historical Society

2001 The Fidelity Building

123 South Broad Street

Philadelphia, PA 19109

(215) 893-3000

RicHARD C. BRAuTIGAM, Counsel of Record

MarK O. KASANIN

McCutTcHEen, DoyLe, BRowN & ENERSEN

Counsel for National Maritime

Museum Association

3 Embarcadero Center

San Francisco, CA 94111

(415) 393-2000

TABLE OF CONTENTS

py Se gh ep yey yt rr

Brame. Ge AMET CURIAE . 2... ccc ec scnencs

I. NATIONAL MARITIME HISTORICAL SO-

SW NEURONS ov iicecencccsschyences

Il. NATIONAL MARITIME MUSEUM ASSO-

RPE DOASND WH MPNREOUEGEED CS. cece es ccecaees

Ill. THE DECISION BELOW WILL AD-

VERSELY AFFECT HISTORIC SHIP PRES-

RI PRGMUIES PEPER ES coca che etvcercerse

REASONS RELIED ON FOR GRANTING THE

EE ia eee ew G Waa ne sk saeiKas ARERR Re eae

I. THE WRIT SHOULD BE GRANTED BE-

CAUSE THE DECISION BELOW CON-

FLICTS WITH DECISIONS OF OTHER

PSM PEIURE ED 6s.0'0 toh ay chiens cdna'8 8

Il. THE WRIT SHOULD BE GRANTED BE-

CAUSE THE DECISION BELOW CON.-

TRAVENES THE PURPOSE OF THE

LONGSHOREMEN’S ACT GENERALLY

AND OF SECTION 905(b) PARTICULARLY

I 5 nibs Kia de 'uudahale es souls iawn cneee?

APPENDIX A: Permanently-Berthed Museum Ships in

ID. 5:5 «0 sn 6ie'0454.k sdb ewlks Seah ses wee

tv

12

TABLE OF AUTHORITIES

Cases PAGE

Cook y. Belden Concrete Producis, Inc., 472 F.2d 999

(Sth Cir.), cert. denied, 414 U.S. 868 (1973) ........ 7

Dickerson v. New Banner Institute, Inc., ——U.S. —— ,

a es DR wes isi b G06 dane 6 eae Wee bs 7)

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

ER i ark Pes Gis 3:0 Ve he aerate oe RON Eee e 5

First National Bank v. Walker Bank & Trust Co., 385

MI a5 cts eA eicscitode ka as Kaew aor 9

Fleming v. Port Allen Marine Service, Inc., 552 F. Supp.

OED oi 0a keg e 5h nade e Un in ee Oe

Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31

(3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976) .. 5,6

Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817

(Sth Cir. 1975), cert. denied, 423 U.S. 1050 (1976) .. 6

Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731

ets cha ticenG a etre: Vena MAR ee taman et 11

Jefferson v. S.S. Bonny Tide, 281 F. Supp. 884 (E.D.

NS ices a. oc ca:cins shins 63 tak diamante eae Grete 1]

Jones & Laughlin Steel Corp. v. Pfeifer, U.S. —_ ,

oe kB LS) inte Me.

Mayfield v. Wall Shipyard, Inc, 510 F. Supp. 605 (E.D.

ES «Sih Ein k'6. 96.0 nee. Lalend ba ee hae eee 5, 6

McCarthy v. The Bark Peking, 716 F.2d 130 (2d Cir.

NT SO ig Sn 6 Cas Wie'u 50d. aw ees aloe tae ie 3, 12

Nations v. Morris, 483 F.2d 577 (Sth Cir.), cert. denied,

ee CT CONFER Wes sch ecu y Kus pies bore reek eee 8-9

Reed v. The Yaka, 373 U.S. 410 (1963) .............. 10, 11

Cases PAGE

Roper v. United States, 368 U.S. 20 (1961)... 2.2.0... 11

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ..... 10

Wendt v. General Dynamics Corp., __— F. Supp. ——.

SFP Pica, GOO CED SOTOD has he adv evens ues a

West v. United States, 361 U.S. 118 (1959) 2... 00.0... ll

Statutes

Jones Act, 46 U.S.C. $668 ef s@q. 2... ccc cen escsne

46 U.S.C. $688 (1975 & Supp. 1983) ..............

MRF ee BUEE oi crs ccc xs Cos eer Me cae eee

Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. §§901-950

| A ee ee oe Be 3.4.8

ND aio enckivsavecctude kates 3, 4, 5, 6, 7, 10, 11, 12

DE ae dd ve ek caVienanna ciate an etes aeeeeenee 8

SEP ratir ge iad hen ela wewaae ea eeeee eee ae 8

P.L. 69-803, ¢.509, §5 (March 4, 1927),

WO OU DAO ss sndk cud cae eces acuns oth aeeee 8

Other Authorities

H.R. Rep. No. 1767, 69th Cong., 2d Sess. 19-20 (Janu-

WE TR, WER sonia Swe dewec ute kein Reovehaeemtor

69 Cong. Rec. H5410, 14 (March 2, 1927) ...........

1 Benedict on Admiralty $161 at 10-2 (7th ed. 1983) ... )

Gilmore & Black, The Law of Admiralty

Gee TIE 005-0 u's.'e'cdusinvakanes seine tines 10

1 Norris, The Law of Maritime Personal Injuries §12 at

PP CHOU. BOTEP 0k deco sess csuannee Rene eueeoeee 9

l

INTEREST OF AMICI CURIAE

Amici Curiae, National Maritime Historical Society and Na-

tional Maritime Museum Association are directly interested in

historic ship preservation and submit this Brief Amici Curiae

pursuant to United States Supreme Court Rule 36.1 in support

of the Petition for Writ of Certiorari to the United States Court

of Appeals for the Second Circuit (*‘Petition’’) which was filed

in this matter by Petitioner, South Street Seaport Museum.

Pursuant to United States Supreme Court Rule 36.5, this brief

amici curiae sets forth the interest of the amici curiae, the

reasons relied on by amici curiae for granting the writ of cer-

tiorari, and the conclusion.

I. NATIONAL MARITIME HISTORICAL SOCIETY’S

INTEREST

National Maritime Historical Society (“Society”) is a 7,500

member nonprofit District of Columbia corporation estab-

lished in 1963 to support and facilitate the capability of mu-

seums, including Petitioner, South Street Seaport Museum, to

acquire, restore, preserve and display historic ships. The Soci-

ety is the largest maritime historical organization in America.

The Society helped raise and administer the funds for the pur-

chase of the Wavertree and the Ernestina and for the restora-

tion of the Wavertree. The Wavertree is permanently berthed

at the South Street Seaport Museum, and, after restoration,

the Ernestina will be permanently berthed at the New Bed-

ford, Massachusetts, maritime museum.

The Society has acquired title in its own name to certain

historically important ships, including the last American-regis-

tered square-rigged ship in active service, the hulk Kaiulani,

and the Vicar of Bray. The Kaiulani was dismantled by scav-

engers in the Philippines before the Society could obtain the

funds to bring her to the United States for restoration. The

Vicar of Bray risks the same fate in the Falkland Islands while

the Society acquires funds to bring her to the United States for

restoration.

5

To raise money for and publicize the cause of historic ship

preservation, the Society publishes “Sea History,” a journal of

maritime history with a circulation of approximately 25,000,

two-thirds of which is paid subscriptions.

The Society also acts as a public spokesman for historic ship

preservation in its capacity as the official United States repre-

sentative to the World Ship Trust, a British-based association

of maritime ship historians from Great Britian, the United

States, West Germany, France and the Netherlands.

Il. NATIONAL MARITIME MUSEUM ASSOCIATION’S

INTEREST

National Maritime Museum Association (*‘Association’’) is

a California nonprofit corporation established in 1951, in part

to purchase and restore historic ships for permanent display in

San Francisco. Five historic ships are permanently berthed in

San Francisco: C.A. Thayer, Wapama, Eureka, Hercules, and

Balclutha. Title to these five permanently-berthed museum ships

is held by the National Park Service, which operates the Na-

tional Maritime Museum in San Francisco. The Association

also holds title to and raised funds for restoring the U.S.S.

Pampanito which will be permanently berthed in San Francisco.

The Association’s acquisition and restoration of the Balclu-

tha was one of the first major nonmilitary ship restoration

projects in America, and was the genesis of the large public

interest in historic ship preservation. The Association pur-

chased the Balclutha in the early 1950's for $25,000.' She was

restored during 1954 and 1955 through the combined efforts of

trade unions, business and the public in the San Francisco Bay

area. Trade union members contributed 150,000 hours of labor

at no charge; business contributed over $100,000 in goods and

services; public volunteers added another 50,000 hours of work;

and the Balclutha was permanently berthed and opened to the

public in late 1955.

1. Title to the Balclutha was recently transferred to the National Park

Service.

-

Ili. THE DECISION BELOW WILL ADVERSELY

AFFECT HISTORIC SHIP PRESERVATION EFFORTS

The question presented here is whether a structure such as

the Peking, that is not used and is not intended ever to be used

for transport on navigable waters, is a “vessel” within the

meaning of Section 905(b) of the Longshoremen’s and Harbor

Workers’ Compensation Act (“‘Longshoremen’s Act” or *Act’’),

33 U.S.C. §905(b). If it is, an injured employee can circumvent

the exclusive compensation remedy provision in Section 905(a)

of the Act, 33 U.S.C. §905(a), and sue the *‘vessel”” owner for

negligence, even if the owner is his employer.” The court below

held that something is a “vessel” under the Act if it has the

“residual capacity” for use as a means of transport on water,

regardless of its actual use or whether there is even a remote

possibility that it would ever be used in such residual capacity.

McCarthy v. The Bark Peking, 716 F.2d 130, 135 (2d Cir.

1983). If this residual capacity test is not reversed, it will sig-

nificantly increase the cost of, and therefore adversely affect,

historic ship preservation efforts in the United States.

The watchword of historic ship preservation is “cost.” To

reduce costs, most museum ships, like the Peking. are perma-

nently berthed rather than maintained in running condition.

Some fifty-nine museum ships, including the Peking, are now

permanently berthed and open to the public at some 113

American maritime museums.* Because they are permanently

YA This question of what constitutes a “vessel” was left open by Jones

& Laughlin Steel Corp. v. Pfeifer, U.S. —, 103 S. Ct. 2541 (1983). That

decision upheld the right of an injured employee to circumvent Section 905(a)'s

exclusive remedy provision and sue a “vessel’’ owner under Section 905(b)

of the Act for negligence, even though the “vessel’’ owner was also the

employer of the injured employee. There the “vessel’’ was a barge which the

employer owned and which, unlike the Peking, was regularly used for trans-

port on navigable waters.

3. A list of these fifty-nine permanently-berthed museum ships and

their locations is contained in Appendix A hereto.

4

berthed and not intended for transport on navigable waters,

the costs of maintaining them in a seaworthy condition are

avoided. No crew is needed. Constant maintenance of the

steering, propulsion and other operating systems is unneces-

sary. Permanently-berthed museum ships are typically secured

to land with chains or steel cable rather than ropes which re-

quire much more maintenance. They usually have permanent

connections to shoreside utilities and are often grossly overbal-

lasted to prevent rolling.* Most of them are not inspected by

the Coast Guard. In short, a permanently-berthed museum

ship is maintained as a museum exhibit; it is not a seagoing

vessel and its “residual capacity” to be a vessel is theoretical at

best. |

Nevertheless, like the Peking, most of the permanently-

berthed museum ships are afloat and therefore may have the

“residual capacity” to be used as a means of transport on water.

By virtue of the decision below, they could then be held to be

“vessels” under Section 905(b), thereby permitting injured

museum employees to pierce the exclusive remedy provision

in Section 905(a) of the Act. The Society, the Association and

other permanently-berthed museum ships owners could be li-

able as “vessel” owners. Moreover, unlike Longshoremen’s

Act com. ensation benefits, there is no dollar limit on Section

905(b) awards against vessel owners, so such suits could im-

pose intolerably large costs on maritime museums and other

historical ship owners. The cost of restoring and preserving

historic ships is so large and the available funds so small that

historical ship preservation is already an endangered species.

By raising considerably the cost of restoring and preserving

historic ships, the decision below threatens total extinction of

4. The Peking, for example, contains two million pounds of permanent

concrete ballast.

5

historic ship preservation efforts in the United States.° Accord-

ingly, Amici Curiae, National Maritime Historical Society and

National Maritime Museum Association urge the Court to grant

a Writ of Certiorari to the United States Court of Appeals for

the Second Circuit.

REASONS RELIED ON FOR GRANTING THE WRIT

I. THE WRIT SHOULD BE GRANTED BECAUSE THE

DECISION BELOW CONFLICTS WITH DECISIONS OF

OTHER FEDERAL COURTS

The residual capacity test adopted by the Court below squarely

conflicts with the test adopted by four other federal courts.

Each of those other courts has held that a “vessel” under the

Act is something which not only has the residual capacity to be

used for transport on navigable waters, but is actually so used

or is intended for such use. Griffith v. Wheeling Pittsburgh Steel

Corp., 521 F.2d 31, 41 (3d Cir. 1975), cert. denied, 423 U.S.

1054 (1976); Fleming v. Port Allen Marine Service, Inc., 552

F.Supp. 27, 29 (M.D. La. 1982); Mayfield v. Wall Shipyard,

Inc., 510 F.Supp. 605, 607 (E.D. La. 1981); Wendt v. General

Dynamics Corp., —— F.Supp. ——. 1979 A.M.C. 2897, 2902

(D.N.J. 1978). Apart from the court below, few other courts

have held that the mere capacity for such use is sufficient to

make something a Section 905(b) “vessel.” See Duncan v. Dravo

Corp., 426 F.Supp. 1048 (W.D. Pa. 1977). The Writ should be

granted to resolve these conflicting decisions.

In Griffith v. Wheeling-Pittsburgh Steel Corp. the Third Cir-

cuit ruled that an employee could sue the owner pro hac vice

5. The decision below also poses a significant threat to the beleaguered

American shipbuilding industry. Under the “residual capacity” test every

new floating hull, whether it is 5% complete or 50% complete, could be a

“vessel” for Section 905(b) purposes, and every American shipbuilder could

be liable in negligence to its injured employees as a “‘vessel’’ owner pro hac

vice. See Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir.

1975). cert. denied, 423 U.S. 1054 (1976) (allowing §905(b) suit against em-

ployer as vessel owner pro hac vice).

6

of a barge. In so ruling, the court held that the definition of

“vessel” under the Jones Act, 46 U.S.C. $688, was also the

definition of a vessel under Section 905(b). 521 F.2d at 41. See

Wendt v. General Dynamics Corp., 1979 A.M.C. at 2900. The

Jones Act requires a “vessel” to be in or intended for naviga-

tion, not just be capable of navigation. See 46 U.S.C. §713;

Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817, 823

(Sth Cir. 1975), cert. denied, 423 U.S. 1050 (1976). Accord-

ingly, Griffith's holding squarely conflicts with the test adopted

by the court below.

In Mayfield v. Wall Shipyard, Inc. the court held that a

shipyard’s steel pontoon float, which had never traveled out-

side of the shipyard and was never moved with people on it,

was not a Section 90*’* “‘vessel.”’ Far from the “residual ca-

pacity” test used beiow, the court ruled that ‘‘the two most

important factors in determining whether a structure is a [Sec-

tion 905(b)] vessel are the purpose for which the craft is con-

structed and the business in which it is engaged.” 510 F. Supp.

at 607 (emphasis added).

Wendt v. General Dynamics Corp. involved the question of

whether a navigation buoy hull was a Section 905(b) vessel so

that the owner, when sued, was prohibited from seeking in-

demnification from the plaintiff's employer. The Wendt court

held that it was a vessel, noting that it was intended to carry

some people and that while it was at sea for periods up to four

years’ duration, it was boarded by the Coast Guard for inspec-

tion and maintenance purposes, thereby exposing Coast Guard

personnel to “the risks and hazards of sea.” 1979 A.M.C., at

2902. As the court explained, “‘the crucial distinction in deter-

mining whether or not an object is a vessel is whether it is in-

tended to, and does in fact, carry people upon it in the normal

course of events.”’ 1979 A.M.C. at 2902 (emphasis added).

Similarly, in Fleming v. Port Allen Marine Service, Inc., the

court held that a work flat which was used solely to provide an

auxiliary work surface for use in the employer’s ship repair

activities and never left the shipyard was not a Section 905(b)

-

vessel because it was not designed to serve in navigation even

though it had-the capability to do so, 552 F.Supp. at 29 (citing

Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (Sth

cir.), cert. denied, 414 U.S. 868 (1973) (a structure is not a

vessel for Jones Act purposes uniess it is actually engaged in

navigation)).

Because the decision below conflicts with the decisions of at

least four other federal courts, a Writ of Certiorari should be

granted to resolve the conflict.

Il. THE WRIT SHOULD BE GRANTED BECAUSE THE

DECISION BELOW CONTRAVENES THE PURPOSE

OF THE LONGSHOREMEN’S ACT GENERALLY

AND OF SECTION 905(b) PARTICULARLY

A. The Decision Below Contravenes the Purpose of the

Longshoremen’s Act

This case arises under Section 905(b) of the Longshore-

men’s and Harbor Workers’ Compensation Act. Whatever else

that Act may be, it is first and foremost a workers’ compensa-

tion statute. At its heart lies a compromise between employees

and employers which both ultimately supported after several

years of hard Congressional bargaining.” The compromise pro-

6. Representative Graham, who was chairman of the House Judiciary

Committee which held extensive hearings on the bill, noted that “this legis-

lation has been before the House, through its committees, for several years.

It has been considered thoroughly and in every particular. We have had the

benefit of expert advice and have examined all the laws existing in other

states on this subject.” 68 Cong. Rec. H5410 (March 2, 1927). Although not

entirely satisfactory to employers or employees, both ultimately supported

the Act and urged Congress to adopt it:

I wish to say finally to the House that this bill which is now presented,

while it is not entirely satisfactory to each side, both sides have united

in asking to have it passed. The representatives of the longshoremen

and representatives of the employers have both united to ask for the

adoption of this measure. Of course, when you are legislating and there

are conflicting interests you can not expect to satisfy both of them, but

this bill does measurably satisfy both sides, and they ask you to pass it

as it is,

Id. at H5414 (remarks of Rep. Graham).

8

vides that longshore employers will promptly provide medical

care and disability payments to injured employees without a

showing of fault, but that such care and payments will be the

employees’ exclusive remedy against their employers. These

terms of the compromise are clear from the earliest Report on

the Act:

The Senate bill as reported by the committee will pro-

vide the benefits of workmen’s compensation to practi-

cally all maritime workers within the admiralty jurisdiction.

Workmen's compensation has come to be universally rec-

ognized as a necessity in the interest of social justice be-

tween employer and employee. It is the modern substitute

for the old common-law remedy afforded through actions

at law for damages, and promptly affords relief to the

injured employee by furnishing medical attendance and

supplies immediately upon the occurrence of the injury or

as soon thereafter as possible and compensation during

the period of his illness or inability to pursue his usual

employment, and in case of death, financial assistance to

his dependents, without the delay and expense which an

action at law entails.

H. R. Rep. No. 1767, 69th Cong., 2d Sess. 19-20 (January 14,

1927). The exclusive remedy was provided in Section 5 of the

Act, P.L. 69-803, c. 509, §5 (March 4, 1927), and is unchanged

in pertinent part:

The liability of an employer prescribed in section 904 of

this title shall be exclusive and in place of all other liability

of such employer to the employee, his legal representa-

tive, husband or wife, parents, dependents, next of kin,

and anyone otherwise entitled to recover damages from

such employer at law or in admiralty on account of such

injury or death,...

33 U.S.C. §905(a).’ The exclusive remedy is absolute. It “‘com-

pletely obliterates the rights at common, civil or maritime law

oe Medical care is provided by Section 907 of the Act, 33 U.S.C. $907,

and disability compensation by Section 908, 33 U.S.C. §908.

Y

against Employer and fellow employee. Congress in its unlim-

ited power has determined that the relationship gives rise only

to compensation liabilities. The nature of the obligation is that

there is no — the word is no — obligation.”’ Nations v. Morris,

483 F.2d 577, 587-88 (5th Cir.), cert. denied, 414 U.S. 1071

(1973) (footnote omitted and emphasis in original).

Because the prompt payment/exclusive remedy compromise

lies at the heart of the Longshoremen’s Act, fidelity to Con-

gress’ purpose demands that any exception to the exclusive

remedy provision be narrowly construed. See Dickerson v. New

Banner Institute, Inc., gS . 103 S. Ct. 986, 994 (1983)

(the words of a statute are to be interpreted in light of the

purposes Congress sought to serve). Such fidelity is especially

appropriate where, as here, the statute is a compromise one

that was ultimately supported by “both friend and foe of the

legislation at the time of its adoption.’ See First National Bank

v. Walker Bank & Trust Co., 385 U.S. 252, 261 (1966). The

commentators also caution that the meaning of “vessel” must

be measured against a particular statute's purpose and that a

structure may not be a “vessel” for purposes of every admiraity

statute.” The “residual capacity’ test adopted by the court

below flies in the face of these accepted rules of statutory con-

struction and violates the Congressional compromise which lies

at the Act’s heart. Its broad and unwarranted definition of

“vessel” enables employees to circumvent the Act's exclusive

remedy provision and creates a cause of action where none was

intended. Therefore, a Writ should be granted.

8. “The word ‘vessel’ has a variable meaning in law applicable to the

particular statute to which the legislature applied it."’ 1 Norris, The Law of

Maritime Personal Injuries §12 at 23 (3d ed. 1975) (footnote omitted). “Like

‘seaman. the word ‘vessel’ is a flexible one used in conjunction with the

legislative intent of the particular statute involved,” /d. n.56. Accord 1 Ben-

edict on Admiralty $161 at 10-2 (7th ed. 1983) (“It may happen that a

structure may be a vessel or other appropriate maritime object for the pur-

pose of the application of one rule of admiralty law and not for another;

mae

10

B. The Decision Below Contravenes Section 905(b)’s

Purpose

Section 905(b) permits an injured employee covered by the

Act to sue a “vessel” owner for negligence. In Jones & Laugh-

lin Steel Corp. v. Pfeifer, this Court held that Section 905(b)

allows an injured employee to bring a separate negligence ac-

tion against his employer in the employer's capacity as vessel

owner. There. of course. the “vessel” was really a vessel — a

coal barge. In reaching its holding in Jones & Laughlin the

Court looked to “the history of the Act.” 103 S. Ct. at 2547.

That history was that a longshoreman employed directly by the

vessel could sue the vessel for unseaworthiness. See Reed v.

The Yaka, 373 U.S. 410 (1963). Although the 1972 amend-

ments changed an unseaworthiness cause of action to a negli-

gence claim, this Court held in Jones & Laughlin that “Congress

clearly intended to preserve the rights of longshoremen em-

ployed by the vessel” to maintain an action against their em-

ployer as vessel owner. 103 S. Ct. at 2547 (emphasis added).

Accordingly, to determine what constitutes a “vessel” under

Section 905(b), one must look to history io see what a long-

shoreman’s rights were under the unseaworthiness doctrine.

The sea presents unique hazards and perils to a ship in nav-

igation which are not presented to a building on land, and

persons aboard a ship must maintain a consistently higher de-

gree of readiness in order to resist those perils than must per-

sons in a building. In response to those unique perils, admiralty

has historically recognized that a vessel owes to its crew a

warranty of seaworthiness. See generally Gilmore & Black.

The Law of Admiralty 383-404 (2d ed. 1975). Seas Shipping

Co. v. Sieracki, 328 U.S. 85 (1946), extended this warranty of

seaworthiness to longshoremen injured on a ship in navigation

on the rationale that they were doing seamen’s work and, like

seamen, were exposed to the hazards of the sea. 328 U:S. at

93-94. For the same reasons, longshoremen were subsequently

allowed to sue the vesse! owrer for breach of the seaworthiness

warranty, even though the vessel owner was also their em-

ployer. Reed v. The Yaka, 373 U.S. at 415 (referring to the

“traditional, absolute, and nondelegable obligation of seawor-

thiness”’); Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731

(1967).

But where a vessel was withdrawn from navigation and no

longer intended to subject those aboard to the perils of the sea,

it was held not to warrant its seaworthiness, and an injured

longshoreman did not have an unseaworthiness action against

the vessel’s owner. Roper v. United States, 368 U.S. 20 (1961);

West v. United States, 361 U.S. 118 (1959). For the same rea-

sons, an employee's Reed v. The Yaka unseaworthiness action

against his employer was held not to lie where the employer's

vessel was not in navigation. E.g., Jefferson v. S.S. Bonny

Tide, 281 F.Supp. 884 (E.D. La. 1968) (new vessel under con-

struction). Thus, prior to the 1972 amendments, an injured

employee could sue his employer as vessel owner for unsea-

worthiness, and that claim inherently required that the vessel

be used or be intended for use in navigation.

As this Court held in Jones & Laughlin, the 1972 amend-

ments preserved the longshoreman’s preexisting right to sue a

vessel but changed the theory from unseaworthiness to negli-

gence. Accordingly, where, as in Jones & Laughlin, the em-

ployee was injured while aboard a craft actually used for

transport on navigable waters or intended to be so used, the

employee can make a claim against the vessel owner. But here

the Peking is not actually used or intended ever to be used for

transport on navigable waters. In such circumstances the em-

ployee would not historically have had an unseaworthiness claim,

and there therefore was nothing for the 1972 amendments to

preserve. To nevertheless grant the employee a cause of action

against his employer is inconsistent with Section 905(b)’s his-

tory. It also is contrary to the Act’s prompt payment/exclusive

remedy compromise because it interprets Section 905(b) to

create a cause of action where none existed before. In short,

although a historic ship such as the Peking has masts and sails

and lines and anchors, the mere presence of these parapher-

12

nalia do not pose unique peitls to employees. The unique perils

which gave rise to the unseaworthiness claim arise only when

the craft is intended to be used or is actually used for transport

on navigable waters. That is the test of what is a vessel under

Section 905(b). and the lower court ignored history, Congress’

intent and common sense in adopting the “residual capacity”

test.

CONCLUSION

For the foregoing reasons, this Court should grant a Writ of

Certiorari to the United States Court of Appeals for the Sec-

ond Circuit and reverse the decision in MfcCarthy v. The Bark

Peking, 716 F.2d 130 (2d Cir. 1983).

Respectfully submitted,

ALAN G. Cuoate, Counsel of Record

JosepH F. Moore, Jr.

WayYNeE W. SUOJANEN

Pepper, HAMILTON & SCHEETZ

Counsel for National Maritime

Historical Society

2001 The Fidelity Building

123 South Broad Street

Philadelphia, PA 19109

(215) 893-3000

RICHARD C. BRAUTIGAM, Counsel of Record

Mark O. KASANIN

McCuTcHEeN, DoyL_e, BROWN & ENERSEN

Counsel for National Maritime

Museum Association

3 Embarcadero Center

San Francisco, CA 94111

(415) 393-2000

13

APPENDIX A:

PERMANENTLY-BERTHED

MUSEUM SHIPS IN THE UNITED

STATES

San Francisco, California

C. A. THAYER

WaAPAMA, Steam schooner

EuReKA, ferry boat

HERCULES, tug

U.S.S. PAMPANITO, submarine

BALCLUTHA

South Street Seaport Museum

New York, New York

PEKING

WAVERTREE

Lettie G. Howarp, fishing schooner

AMBROSE, light ship

Mystic Seaport

Mystic, Connecticut

L. A. Dunton, Grand Banks fishing schooner

CHARLES W. MorGan, whaler

JOSEPH CONRAD, sail training ship

Northwest Seaport

Seattle, Washington

WAWONA (awaiting restoration)

SAN MaTEo, ferry boat

RELIEF, light ship

San Diego, California

STAR OF INDIA, clipper

BERKELEY, ferry boat

14

Baltimore, Maryland

U.S.S. CONSTELLATION, frigate

Five FatHoM, light ship

U.S.S. Torsk, submarine

Philadelphia, Pennsylvania

U.S.S. Ovympta, battleship

U.S.S. Becuna, submarine

Cleveland, Ohio

U.S.S. Cop. submarine

Honolulu, Hawaii

FALLS OF CLYDE

Galveston, Texas

ELISSA

U.S.S. CAVALLA, submarine

U.S.S. STEWARD, destroyer

Menominee, Michigan

ALVIN CLARK

Sault Ste. Marie, Michigan

VaLLey Camp, lake freighter

Fall River, Massachusetts

U.S.S. MassacHusetts, battleship

U.S.S. JosepH KENNEDY. destroyer

U.S.S. LionrisH, submarine

Buffalo, New York

U.S.S. LittLe Rock, light cruiser

U.S.S. THE SULLIVANS, destroyer

15

Wilmington, North Carolina

U.S.S. NortH Carona, battleship

Mobile, Alabama

U.S.S. ALABAMA, battleship

U.S.S. Drum, submarine

Charleston, South Carolina

U.S.S. YorKTowN, aircraft carrier

San Jacinto, Texas

U.S.S. Texas, battleship

Douglas, Michigan

KEEWATIN

Superior, Wisconsin

Meteor, whaleback lake boat

Astoria, Oregon

CoLuMBIA, light ship

Groton, Connecticut

U.S.S. CROAKER, submarine

Marietta, Ohio

W. P. SNYDER, stern-wheeler

Shelburne, Vermont

TICONDEROGA, side-wheel steamer

Portsmouth, Virginia

PORTSMOUTH, light ship

16

Booth Bay Harbor, Maine

SHERMAN ZWICKER, fishing schooner

Lewes, Delaware

OVERFALLS, light ship

Chicago, Illinois

U-505, submarine (displayed on land)

U.S.S. Si versipe, submarine

Piney Point, Maryland (maintained by the

Seafarers International Union)

DororHy PARSONS, two-masted oystering craft

RE IEF, light ship

St. Michaels, Maryland

EpnaA E. Lockwoop, two-masted oystering

craft

Nantucket, Massachusetts

NANTUCKET, light ship

New Bedford, Massachusetts

Re ieF, light ship

Hackensack, New Jersey

U.S.S. LING, submarine

Muskogee, Oklahoma

U.S.S. BATFISH, submarine

Manitowoc, Wisconsin

U.S.S. Costa, submarine