Petition — Jeffboat, Inc. v. Robertson

v83210 7 8 Ottice-Supreme Court, US.

FILED

DEC 30 1993

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

October Term, 1983

JEFFBOAT, INC.

Petitioner

versus

PAUL ROBERTSON, ADMR.. etc.

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT M. CONTOIS, JR..,

Counsel of Record

George R. Alvey, Jr.

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE & DENEGRE

225 Baronne Street - 28th Floor

New Orleans, Louisiana 70112

Telephone: (504) 581-6641

ALBERT F. REUTLINGER

MIDDLETON & REUTLINGER

Louisville, Kentucky 40202

Telephone: (502) 584-1135

Attorneys for Petitioner

JEFFBOAT, INC.,

i

QUESTIONS PRESENTED FOR REVIEW

Petitioner submits that its application for a Writ of Certi-

orari to the Court of Appeals for the Sixth Circuit presents

the following questions for review:

1. Whether the decision of the Court of Appeals violates

the “equal treatment” rationale of the United States Su-

preme Court's opinion in Jones & Laughlin Steel Corp, v.

Pfeifer, 462 US. 103 S.Ct. 2541 (1983).

2. Whether the decision of the Court of Appeals ef-

fectively eliminates the exclusive remedy provisions for a

maritime employer in §5 of the United States Longshore-

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

§905, by holding a shipbuilder liable in tort for a simple

failure to provide a safe working environment for its em-

ployees.

3. Whether knowledge of employees engaged in vessel

construction is properly imputed to their employer so as to

impose on that employer, in its alternative status as owner of

the hull under construction, a duty to remedy hazards in the

work place.

4. Whether a vesse! owner-employer who per statutory

mandate cannot be held liable in tort for the negligence of

fellow servants can now be found negligent based upon a

fellow servant’s mere knowledge of the existence of an un-

safe condition.

5. Whether the Sixth Circuit’s holding that mere knowl-

edge of any hazard in shipbuilding activity necessarily im-

poses a duty on the vessel owner to intervene in that activity

to remedy the hazard, which is in conflict with decisions of

the Fourth and Fifth Circuits, is a misapplication of Scindia

Steam Navigation Co. v. de los Santos, 451 U.S. 156 (1981).

ii

CERTIFICATE

Pursuant to Rule 28.1, Petitioner states that the parent

company of Jeffboat, Incorporated, is American Commercial

Lines, Inc. The following is a list of affiliated companies of

Jeffboat, Incorporated:

Amcom, Inc.

American Commercial Barge Line Company

American Commercial Credit Corporation

American Commercial Leasing Company, Inc.

American Commercial Lines, Inc.

American Commercial Terminals, Inc.

Bauer Dredging Co., Inc.

Commercial Barge Line Company

Inland Terminals, Inc.

Inland Tugs Co.

Louisiana Dock Company, Inc.

Mac Towing, Inc.

Mineral Properties, Inc.

Waterway Communications System, Inc.

TABLE OF CONTENTS

Page

Questions Presented for Review ......... 00. c cece eens i

RE Choon a ots co cakes babes OT ERS + eee ii

INS, oss vo 00a cba ueewibessaccy ules v

|S ERTEEERETE EER ee eb eee l

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IES. 5 cb 6 4'0. a'e vias Vue a0 5 bw ah Oh knee 2

STE CREA £04 is 0s ccweteuses aeewecna cee 4

NT. 4% é.5.6s-.6.s0b soe ub SO bS hee ee-e nea oe eee 6

IN a Gra v.00 sath eee pak he sie ee Ries oer 19

SL: JS 5s ¢'o\n's 0 bso 600 kh au bastante aeaeee A-l

Findings of Fact, Conclusions of Law and Memo-

randum Opinion, United States District Court.

Western District of Kentucky ..........ccscccsee. A-l

Judgment, November 6, 1979 ............ 0.0000 A-9

Opinion and Order, United States Court of Appeals

for the Sixth Circuit, June 19,1981 .............. A-10

Order Denying Petition for Rehearing, September

PUUMEEE C046 SckntecdssgisepedserreseRaenae A-13

iv

TABLE OF CONTENTS (Continued)

Order Vacating Judgment and Remanding to

United States Court of Appeals for the Sixth

Circuit, Supreme Court of the United States,

POET, CME, cacccvessd kGuesueclsspyeaweraae

Order Reinstating Previous Opinion and Judgment,

United States Court of Appeals for the Sixth

Cee MONE Bt, POOR oc vcc ccd cevedveucewns

Page

Vv

TABLE OF AUTHORITIES

Page

CASES:

Bonds v. Mortensen and Lange, 717 F.2d 123 (4th

EN d's 'a as wncin oaes KERR EEE oe 18

Cavalier v. T. Smith & Son, Inc., 668 F.2d 861 (Sth

Cir. 1982), cert. denied, 103 S.Ct. 134 (1982) ........ 12

Chiasson vy. Rogers Terminal & Shipping Corp., 679

me GEO OO Clk. BGBZ) og vv cccccccccccecccur 12,13

Duplantis v. Zigler Shipyard, Inc., 692 F.2d 372

I C1. San seb asda ooo Serre cake 15

Helaire v. Mobil Oil Co., 709 F.2d 1031 (Sth Cir.

De eins < oc <0 c veidb outer e Ll eee 17

Hill v. Texaco, Inc., 674 F.2d 447 (Sth Cir. 1982) .. . 14,15

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S.

hing HO Gk. 2908 CISES) . Sc. i, 6, 7,8, 11, 13,15,

19, 20

Reed v. SS. YAKA, 373 U.S. 410, 83 S.Ct. 1349,

Pee MUN MIUED ss ns ceeds ucvaned< amuaeee 8,9

Richardson v. Norfolk Shipbuilding & Drydock

Corp., 621 F.2d 633 (4th Cir. 1980) ............... 12

Scindia Steam Navigation Co. v. de los Santos, 451

U.S. 156, 101 S.Ct. 1614, 68 L.Ed. 2d 1 (1981) ..... i, 6,

7, 14, 15, 16, 17, 18, 19, 20

vi

TABLE OF AUTHORITIES (Continued)

Page

CASES:

Sea Land Services, Inc. v. Gaudet, 414 U.S. 573, 94

rr er a, 2 CEP o.oo oo Ce cccceess ower 5

Smith y. Eastern Seaboard Pile Driving, Inc., 604

EPS OD 65 cnn'e vss wo. vaca steed See pee 12

Stass v. American Commercial Lines, Inc., 683 F.2d

120 (Sth Cir. 1983), reh den, 689 F.2d 190 (1983) ....18

Statutes and Other Authorities:

CED he b.is0 6 opens age én 6s kaa w pf rR 2

EE Ie iiss We oa ok Oe knoe e806 dee KD aE 5

United States Longshoremen’s and Harbor Workers’

Compensation Act, §5, 33 U.S.C. §905(a) ....... 3,6,9

United States Longshoremen’s and Harbor Workers’

Compensation Act, §5(b), 33 U.S.C. §905(b) ... .3, 5, 8,

11,12

Safety and Health Regulations for Shipbuilding, 29

EE oi ad 60:6. Wee bebe sak ehe koe tere 7

Safety and Health Regulations for Shipbuilding, 29

i ED °. os). s\n's ub vcs ath bb aabeucee eens 7

H. R. Report No. 92-1441, 1972 U.S. Code Cong. &

i EE OED ovccccnserc cde iehasdneden 8

a

>

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JEFFBOAT, INC.

Petitioner

versus

PAUL ROBERTSON, ADMR.., etc.

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The opinion of the United States District Court for the

Western District of Kentucky is not reported. The first

decision of the United States Court of Appeals for the

Sixth Circuit is reported under the title “Robertson v.

Jeffboat, Inc.” at 651 F.2d 434 (1981). The United States

Supreme Court vacated the Sixth Circuit decision and re-

manded the action in Jeffboat, Inc. v. Robertson,

US. ___, 103 S.Ct. 3528 (1983). The United States Court

of Appeals for the Sixth Circuit reinstated its judgment in

Robertson v. Jeffboat, Inc., No. 80-3136 (Oct. 25, 1983).

2

JURISDICTION

Petitioner seeks a Writ to the United States Court of

Appeals for the Sixth Circuit to review its order, filed on

October 25, 1983, following remand by the United States

Supreme Court, which reinstated its decision and order

filed on June 19, 1981. This Court has jurisdiction pursuant

to 28 U.S.C. §1254(1).

STATUTE INVOLVED

This Petition raises issues under the following provisions of

the United States Longshoremen’s and Harbor Workers’

Compensation Act:

Exclusiveness of liability

(a) The liability of an employer prescrib-

ed in section 904 of this title shall be exclu-

sive and in place of all other liability of such

employer to the employee, his legal represen-

tative, 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, except that if an employer fails to

secure payment of compensation as required

by this chapter, an injured employee, or his

legal representative in case death results from

the injury, may elect to claim compensation

under the chapter, or to maintain an action at

law or in admiralty for damages on account of

such injury or death. In such action the de-

fendant may not plead as a defense that the

injury was caused by the negligence of a fel-

low servant, or that the employee assumed

3

a

the risk of his employment, or that the

injury was due to the contributory negligence

of the employec.

(b) In the event of injury to a person

covered under this chapter caused by the

negligence of a vessel, then such person, or

anyone otherwise entitled to recover damages

by reason thereof, may bring an action against

such vessel as a third party in accordance with

the provisions of section 933 of this title, and

the employer shall not be liable to the vessel

for such damages directly or indirectly and

any agreements or warranties to the contrary

shall be void. If such person was employed by

the vessel to provide stevedoring services, no

such action shall be permitted if the injury

was caused by the negligence of persons

engaged in providing stevedoring services to

the vessel. If such person was employed by

the vessel to provide ship building or repair

services, no such action shall be permitted if

the injury was caused by the negligence of

persons engaged in providing ship building or

repair services to the vessel. The liability of

the vessel under this subsection shall not be

based upon the warranty of seaworthiness or

a breach thereof at the time the injury oc-

curred. The remedy provided in this sub-

section shall be exclusive of all other remedies

against the vessel except remedies available

under this chapter. 33 U.S.C. §905.

4

STATEMENT OF THE CASE

Plaintiff-respondent in this admiralty action is the adminis-

trator of the estate of William H. Robertson, a former em-

ployee of Defendant-petitioner, Jeffboat, Inc. Robertson

drowned after apparently falling into the Ohio River at

approximately 10:30 p.m. on February 27, 1975. He had

been working in a crew which was sandblasting a barge being

built by his employer at its Jeffersonville, Indiana, facility.

No one actually saw Robertson fall into the river. The

testimony of his co-workers established that just before he

disappeared Robertson had been on the barge participating

in a sandblasting operation, straightening air lines along the

deck of the barge. He was last seen near the upstream end of

the barge, and a few moments later one of his fellow crew-

members realized that he had disappeared. A sandblasting

hood which he had been wearing came to the surface at the

end of the barge, but Robertson himself was never observed.

His body was recovered several months later.

The barge on which the accident occurred was one of a

series being built by petitioner Jeffboat pursuant to a con-

tract with Louisiana Barge Company, Inc., of New Orleans,

Louisiana. The terms of the contract called for payment of

25% of the construction price on execution of the contract

and the balance on delivery of the barge. The particular barge

from which Robertson disappeared was completed on March

6, 1975, seven days following the accident, and was delivered

on March 13, 1975. The incomplete barge hull was personal

property of Jeffboat at the time of the accident.) It was a

standard, unmanned inland river cargo barge. In his original

complaint, Plaintiff-respondent alleged that Robertson had

1 It was never contemplated that Jeffboat would be the owner of

the vessel after it was placed in commerce and navigation.

5

been a member of the crew of the barge on which he had

been working, anil sought recovery under the Jones Act,

46 U.S.C. §688, for negligence, and under general maritime

law for unseaworthiness of the barge. He also sued Louisiana

Barge Company, alleging that it owned the barge on which

the accident occurred. The trial court granted Petitioner’s

motion for summary judgment on the Jones Act and general

maritime law claims, but while the motion was pending,

plaintiff amended his complaint to allege a claim against

Jeffboat under §5(b) of the United States Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U.S.C. §905(b).

Plaintiff voluntarily dismissed his claim against Louisiana

Barge Company. The district court retained jurisdiction of

the remaining claim pursuant to 28 U.S.C. §1333.

The claim under the compensation act was tried to the

court, sitting without a jury, and the court made Findings of

Fact and reached Conclusions of Law on which judgment was

entered in favor of plaintiff. The trial court found that Jeff-

boat had been negligent in failing to provide temporary

lighting for the work area where the accident occurred and in

failing to provide life rings or alarm devices in the vicinity.

The testimony had established without dispute that tem-

porary lighting was customarily provided by the shipyard

as part of the services rendered to the vessel owner during

construction or repair activity. There was no -vidence to

show that any such lights were kept aboard the barge, or that

vessel owners customarily provided temporary lighting for

use on an unmanned vessel. Damages were awarded by the

district court to the plaintiff administrator for the benefit

of the surviving parents of the deceased to compensate them

for the loss of his society, Sea Land Services, Inc. v. Gaudet,

414 US. 573, 94 S.Ct. 806, 39 L.Ed. 2d 9 (1974), which

damages were mitigated 50% for negligence of the deceased

in failing to wear a life jacket.

6

In Jeffhoat v. Robertson, 651 F.2d 434 (6th Cir. 1981),

the Sixth Circuit affirmed the district court's opinion by

holding that any knowledge of a dangerous condition that

Jeffboat may have had as ship builder-employer would be

imputed to Jeffboat as a vessel owner and that this imputed

knowledge would create an ipso facto duty for the vessel

owner to intervene and remedy the condition. The United

States Supreme Court vacated that decision and remanded to

the Sixth Circuit for reconsideration in light of its opinion in

Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 4

103 S.Ct. 2541. Commenting that it was “. . . unable to

find any conflict . . .” between its original opinion and

Pfeifer, the Sixth Circuit reinstated its prior decision by an

order dated October 25, 1983.

ARGUMENT

The United States Longshoremen’s Harbor Workers’

Compensation Act provides that the obligation to pay com-

pensation benefits prescribed in the Act shall be the exclu-

sive liability of the employer to its employee or his legal

representative.2 The decision of the Court of Appeals in

this matter effectively eliminates the immunity from tort

liability for a shipbuilder in those instances where injury

occurs on a vessel under construction as a result of an un-

safe working condition occurring in the construction process.

The Court of Appeals reached that conclusion by a com-

bination of two errors: First, by its failure to draw a distinc-

tion between the employer's capacities as builder of the

vessel and as owner of the res under construction; and,

second, by its startling generalization of a vessel owner’s

duty purportedly drawn from this Court’s decision in Scindia

Steam Navigation Co. v. de los Santos, 451 U.S. 156 (1981).

2 830U.S.C. §905(a).

-

The Circuit Court's failure to draw the proper distinction

between the separate capacities of the employer is in sub-

stantial conflict with this Court's decision in Jones & Laugh-

lin Steel Corp. v. Pfeifer, 462 US. , 103 Ct. 2541

(1983), as well as decisions of the Second, Fourth and Fifth

Circuits. The Circuit’s original opinion, reinstated by it

after having been vacated by this Court, violates the express

intent of Congress as recorded in the legislative history of

the statutory provision at issue, and its definition of the duty

owed by a vessel owner to construction workers aboard his

vessel is at odds with the holding in Scindia. For those rea-

sons, a writ of certiorari should be issued to the Sixth Circuit

to review these issues.

The evidence at trial showed beyond dispute that the

accident which resulted in Robertson’s death was caused

concurrently by his own negligence and by a failure of his

employer to provide temporary lighting. The night shift

superintendent for the defendant Jeffboat testified that

temporary lighting ordinarily was provided by the foreman

of the working crew. That fact was confirmed as consistent

with industry practice by expert witnesses. The Safety &

Health Regulations for Shipbuilding promulgated by the

Occupational Safety & Health Administration contain de-

tailed requirements governing lighting, including temporary

lighting, 29 C.F.R. §1916.52, and life rings, 29 C.F.R.

§1916.84(c), as a part of the employer’s duty to provide a

safe place in which to work.

The evidence as to the practice of providing temporary

3 The trial court also found that Jeffboat was negligent in failing

to provide life rings and alarm devices, but Robertson was never seen

after he disappeared from the barge, and such a failure could not

have caused his death.

8

lighting where necessary at Jeffboat, the evidence of industry

custom, and the applicable regulations compel the conclusion

that the inadequate lighting which contributed to this casual-

ty was a breach of duty by the employer as builder of the

barge. There was no opposing evidence to show practice,

custom, or regulation requiring a vessel owner under these

circumstances to provide the necessary lighting; indeed,

Plaintiff-respondent’s expert witnesses specifically negated

any such custom. Neither was there any evidence of knowl-

edge of inadequate lighting at the work site on the part of

Jeffboat’s employees other than the members of the crew

in which Robertson was working and the night shift super-

intendent.

This factual predicate raises the issue of interpretation

and application of the provisions in the 1972 amendments

to the United States Longshoremen’s and Harbor Workers’

Compensation Act which provide an exception to the em-

ployer’s immunity from tort actions on behalf of its em-

ployees. Such actions had been allowed by decision of this

court in Reed v. S. S. YAKA, 373 U.S. 410 (1963), and

Congress added the following provision to the section govern-

ing employers’ tort liability:

If such person [an employee covered by the

Act] was employed by the vessel to provide

shipbuilding or repair services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in provid-

ing shipbuilding or repair services to the

vessel.

33 U.S.C. §905(b).

The legislative history4 regarding that provision and the

4 H. R. Report No, 92-1441, 1972 U.S. Code Cong. & Admin,

News 4698, 4705.

9

decisions of the Courts of Appeals interpreting it establish

that a longshoreman, repairman, or shipbuilder retains the

right to sue his employer in its capacity as owner of a vessel

on which he works by treating the relationship between them

as if he and his co-workers were employed by an independent

contractor. The clear intent is to eliminate the inequity

arising from literal application of the tort immunity provision

where the employer also happens to own the vessel on which

services are being rendered - - the inequity which prompted

the decision in Reed v. S. S. YAKA.

This Court held fast to the “equal treatment” rationale in

its recent decision of Jones & Laughlin Steel Corp. v. Pfeifer,

462 US. , 103 S.Ct. 2541. The longshoremen claimant

there was injured in the course of his employment by the

defendant as a loading helper on the defendant’s coal barge.

Plaintiff received compensation payments from his employer,

but also sued the employer for damages for vessel negligence.

The district court entered judgment in favor of plaintiff

awarding tort damages against the plaintiffs employer in

its capacity as vessel owner, and that judgment was affirmed

by the Third Circuit. On Writ of Certiorari to the Third

Circuit, the defendant employer sought to persuade the

Supreme Court that §5(a) of the United States Longshore-

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

§905(a), limited its liability to its employee to the compen-

sation benefits provided in §4 of the Act. This court focused

its inquiry on the conflicts between § 5(a)’s exclusive remedy

language and §5(b)’s granting of a cause of action for vessel

negligence and stated:

Although petitioner’s contention [that com-

pensation under §4 should be plaintiff's

exclusive remedy under §5(a)] is, indeed,

supported by the plain language of §5(a), it

is undermined by the plain language of

10

§5(b). The first sentence of §5(b) authorizes

a longshoreman whose injury is caused by the

negligence of a vessel to bring a separate

action against such a vessel as a third party.

Thus, in the typical tripartite situation, the

longshoreman is not only guaranteed the

statutory compensation from his employer;

he may also recover tort damages if he can

prove negligence by the vessel. The second

sentence of §5(b) makes it clear that such a

separate action is authorized against the vessel

even when there is no independent stevedore

and the longshoreman is employed directly by

the vessel owner. That sentence provides, “if

such person was employed by the vessel to

provide stevedoring services, no such action

shall be permitted if the injury was caused by

the negligence of persons engaged in providing

stevedoring services to the vessel.” If §5(a)

had been intended to bar all negligence

suits against owner-employers, there would

have been no need to put an additional

sentence in §5(b) barring suits against owner-

employers for injuries caused by fellow

servants.

462 U.S. at ___., 103 S.Ct. at 2547.

The Court then concluded that §5(b) of the Act does

allow recovery of damages from an employer as owner of

a vessel and remanded the matter to the court below for

reconsideration of the manner in which the amount of

the award had been calculated. The Supreme Court has

made eminently clear that the law requires all harbor workers

to be treated equally, whether their employer is an inde-

pendent contractor or a vessel owner doing its own long-

shoring work.

ut

The essential thrust of the Court’s discussion in Pfeifer

was that actions for negligence should be evaluated as if

the plaintiff employee had been employed by an independent

contractor. The Court pronounced its conclusion and hold-

ing regarding the plaintiff Pfeifer as follows:

If respondent had been employed by an in-

dependent stevedore at the time of his in-

jury, he would have had the right to main-

tain a tort action against the vessel. We hold

today that he has the same right even though

he was in fact employed by the vessel.

462 US. at , 103 S.Ct. at 2548.

Considering Robertson’s claim under the quoted standard

leads to the unavoidable conclusion that he would not have

been entitled to recover, if he had been employed by an

independent shipbuilder. His employment relationship to

Jeffboat cannot make the difference in whether or not he

prevails in this suit. Since the evidence was insufficient to

support a claim by an employee of an independent con-

tractor, it is likewise insufficient to support Robertson’s

claim. Defendant, Jeffboat, has acknowledged from the

outset of this action that the Act permits employee suits

against employer vessel owners and has not sought to chal-

lenge liability on that basis. Nevertheless, the rationale under-

lying the Pfeifer decision applies with particular force to the

facts and issues of this case. If a harbor worker should not

be deprived of his rights under §5(b) simply because his

employer and the vessel owner happen to be the same entity,

logically the converse of such an analysis should also be

true — i. e., the immunity from tort liability for a maritime

employer in those instances where injury occurs as a result

of negligence of persons engaged in ship building services

should be equally applicable where the employer and vessel

12

owner are the same party. Such reasoning has been applied

by several of the circuit courts.

The Second Circuit in Smith vy. Eastern Seaboard Pile

Driving, Inc., 604 F.2d 789 (1979), considered a claim

against an employer-owner which raised the question of the

nature of the negligence which had caused the death of an

employee providing repair services. That court held that a

determination must be made whether the negligence was

“owner occasioned” as distinguished from negligent acts of

co-employees providing repair services.5 The negligent

employees in Smith were members of the crew of a tug

operated by their employer, therefore recovery was allowed.

The same reasoning was applied in Richardson v. Norfolk

Shipbuilding & Drydock Corp., 621 F.2d 633 (4th Cir.

1980). In that case the accident resulted from the negligent

operation of a barge mounted crane by a co-employee en-

gaged in repair work. Finding that the only work performed

on the barge was repair work, the court denied recovery

under §905(b) because the negligence of the crane operator

was committed in his capacity as a repairman and, thus, was

not negligence of the vessel owner.

The distinction between the ownership and service ca-

pacities of the employer mandated by the statute, as recog-

nized bythe Second Circuit in its Smith decision and the

Fourth Circuit in its Richardson decision, also has been

adopted by the Fifth Circuit. In Cavalier v. T. Smith & Son,

Inc., 668 F.2d 861 (Sth Cir. 1982), the court held the plain-

tiffs suit to be barred by §5(b), because the negligence that

caused his injury was attributable to the vessel’s crew who

were performing stevedoring services when the plaintiff was

injured. In Chiasson v. Rogers Terminal & Shipping Corp.,

5 604 F.2d 795.

13

679 F.2d 410 (Sth Cir. 1982), the court again recognized the

necessity of distinguishing between the dual capacities of an

employer-vessel owner and affirmed the district court’s grant-

ing of a summary judgment to the defendant on that basis.

These circuits have recognized that the Supreme Court and

Congress have made clear their intent that all harbor workers

be treated equally in determining their tort rights without

regard to the presence or absence of an employment relation-

ship to the vessel owner. The approach taken by the Sixth

Circuit in deciding the appeal of Jeffboat violates this equal

treatment principal by extending significant practical ad-

vantages to some harbor workers simply because they happen

to be employed by the vessel owner. Employees of in-

dependent contractors would not enjoy that very genuine

practical advantage. Thus, we would have the converse of

Pfeifer causing prejudice to employees of independent

contractors. Such a situation would be in conflict with the

policy rationale behind treating all harbor workers equally.

In its prior opinion, the Sixth Circuit correctly observed

that Jeffboat’s liability must be based on some negligence

as owner, rather than as employer, and that its actions in the

two capacities must be kept distinct. But, the court then

ascribed to the barge owner Jeffboat the same knowledge

which employees of the barge builder Jeffboat had acquired

in the course of their work. That made every member of the

sandblasting crew on which Robertson worked an agent of

the barge owner for the purpose of determining what knowl-

edge was chargeable to the owner. That approach creates an

inequity favoring an employee working on his employer’s

vessel over employees of independent contractors doing the

same work and facing the same hazards. For the sake of

illustration, if Robertson had been employed by an in-

dependent sandblasting company, which had proceeded with

the work under the same circumstances — i. e., working with-

14

out lights and other safety devices required by federal statute

and regulation the knowledge of that fact by other em-

ployees of the independent contractor would not be at-

tributed to the vessel owner and would not bear on alleged

liability of Jeffboat as owner of the barge under construc-

tion.

The likelihood of unequal treatment is iliustrated by the

decision in Hill v. Texaco, Inc., 674 F.2d 447 (Sth Cir.

1982). Hill was employed by an independent contractor

which went aboard the defendant Texaco’s vessel to de-

termine the effect of rust on the thickness of the walls in

the cargo tanks on the vessel. Hill was injured while climbing

around inside a tank without a safety belt or safety line.

The Court found that a shipowner is not negligent under

§5(b) simply because an unsafe condition is present at the

commencement of ship repair operations, absent actual

knowledge on the part of the shipowner that the repair

contractor would not employ routine safeguards to avoid

hazards to which his employees might be exposed.

Although the trial court had found that the vessel owner

Texaco knew that Hill was not using safety equipment, the

Court of Appeals reversed that finding as clearly erroneous

and found that actual knowledge had not been proved. A

judgment against Texaco was reversed, because the lack of

knowledge defeated liability under the Scindia standard of

care. Consider, however, that if Hill’s crew had been employ-

ed directly by Texaco, and if Hill had been injured in exactly

the same manner, using the approach taken by the Sixth

Circuit would likely reverse the result of the case. All Hill

would need to show was that some member of his crew knew

that he was working without a safety line, and that knowl-

edge would be attributed to Texaco as owner of the vessel

and would lead to liability for having failed to intervene and

enforce a safety regulation. For that matter, knowledge by

15

Hill himself probably would satisfy the Sixth Circuit’s

standard; it would be knowledge of an employee imputed to

the employer as vessel owner. The prospect of a difference in

results attributable solely to the presence or absence of an

employment relationship is simply incompatible with the

principle stressed by this court in Pfeifer.

The rationale of Hill was given further approval by the

Fifth Circuit in Duplantis v. Zigler Shipyard, Inc., 692 F.2d

372 (Sth Cir. 1982). A barge had exploded during gas freeing

operations at the independent contractor’s shipyard. The

Court found no duty on the part of a barge owner to inter-

vene, because there was no evidence that the owner ever

became aware of any defects which developed during the

contractor’s repair operation, and the vessel owner was

entitled to rely on the expertise of the independent con-

tractor in performing the operations which it had agreed to

perform.

The inequality of the Sixth Circuit’s imputed knowledge

approach is magnified when combined with its interpretation

of Scindia Steam Navigation Co. v. de los Santos, 451 U.S.

156 (1981), that knowledge of a hazard obliges the owner

to intervene to remedy the hazard. In addition to charging

Jeffboat as owner of the barge under construction with the

knowledge of its employees engaged in building the barge,

the Court of Appeals also read this court’s decision in

Scindia to hold that knowledge by an owner of a hazard in

the independent contractor’s operations necessarily gives

rise to a duty on the part of the owner to intervene in that

operation to remedy the hazard. But the decision in Scindia

Steam Navigation Co. v, de los Santos stopped far short of

setting a standard of care in terms expressed by the Sixth

Circuit. Scindia does not hold that a vessel owner is obligated

to intervene in stevedoring or similar activities in all instances

where it has knowledge of a safety hazard.

16

Comparing this case to Scindia must start with recognition

of significant factual distinctions affecting the duty imposed

on the owner. In Scindia the injury was caused by a mal-

function in the ship’s gear which had existed when the steve-

dore commenced work.® This Court also noted that there

was an inference at least that it was the owner’s responsibility

under OSHA and Coast Guard regulations to perform the

repairs necessary to eliminate the malfunction.” This case did

not involve any equipment of the barge under construction;

rather, it arose from a failure of the shipbuilding crew to set

up the temporary lights.8 The applicable OSHA regulations

placed this obligation on the employer in its shipbuilding

capacity.

Under the facts in Scindia, this Court expressly rejected

the Ninth Circuit’s formulation of a duty to inspect and to

supervise the stevedore activity as being too broad an in-

terpretation of §5(b).9 The holding of the Sixth Circuit

here is, in all practical respects, a return to that overly broad

standard. In short, the imputed knowledge amounts to a duty

to discover the danger. If the vessel owner is going to be

liable because his longshore employee had knowledge of a

hazard which caused injury to a co-employee, the owner is

compelled to inspect and to supervise the work or suffer

6 Actually, the evidence on the point was in dispute. Since the dis-

trict court had granted the owner a summary judgment, the plaintiff's

version of the facts was assumed correct in deciding the legal issues.

451 U.S. at 156, 101 S.Ct. at 1618, 68 L.Ed.2d at 7.

7 451 U.S. at 175-178, 101 S.Ct. at 1626-27, 68 L.Ed. 2d at 18-19.

8 There is a single reference in the opinion of the Court of Appeals

to guard rails. Although Plaintiff sought to establish liability on such a

basis, the District Court did not find Jeffboat negligent in that respect.

9 4651 U.S. at 168-170, 101 S.Ct. at 1622-24, 68 L.Ed. 2d at 13-15.

17

the consequences in tort liability, in addition to payment of

compensation required by the Act.

The formulation of the standard of care set forth in the

principal opinion in Scindia was that there are circumstances

in which an owner has a duty to act where the hazard arises

from the malfunctioning of the vessel’s gear.19 The particular

circumstances which the Court pointed out were that the

owner had actual or constructive knowledge of the mal-

function and that there was an inference at least that it was

the owner’s responsibility in normal operations to repair its

own equipment. Nothing in the principal opinion nor in

either of the concurring opinions justifies the Court of

Appeals’ conclusion that knowledge of a hazard and fore-

seeably of harm obligates the owner to act. This interpreta-

tion also is in substantial conflict with the positions of the

Fifth and Fourth Circuits.

In its recent decision in Helaire v. Mobil Oil Co., 709 F.2d

1031 (1983), the Fifth Circuit spelled out the extent of a

vessel owner’s duty to harbor workers. The Court addressed

the issue of whether liability of a vessel owner, with respect

to dangers arising once stevedoring operations have begun,

is less extensive under §5(b) of the Longshoremen’s and

Harbor Workers’ Compensation Act, than under traditional

tort rules. The court answered this inquiry affirmatively,

holding that imposition of liability upon the vessel owner

in the absence of actual knowledge is clearly foreclosed under

Scindia. Further, it read Scindia as requiring both actual

knowledge of a hazard and actual knowledge that the con-

tractoremployer will not protect his employees from danger

before the duty to intervene arises. Thus, the vessel owner

is not required to discover the dangerous condition, nor to

anticipate that the independent contractor will ignore it.

10 451 U.S. at 176, 101 S.Ct. at 1626, 68 L.Ed. 2d at 17.

18

Petitioner submits that this concisely focused standard of

liability i. ¢., actual knowledge of the condition and

actual knowledge of the fact that the independent contractor

will not remedy it — once stevedoring or other contracting

obligations have begun constitutes the correct analysis of

Scindia

The Fifth Circuit has reiterated this position in the case of

Stass v. American Commercial Lines, Inc., No. 80-3704

(Dec. 9, 1983), wherein it announced that the defendant

barge owner did not have a duty to supervise or inspect a

shipyard’s repair operations. Because the vessel owner did

not have actual knowledge of the hazardous condition which

arose, the court found it did not transgress Scindia’s require-

ment that a vessel owner intervene when an unsafe condition

is known and the stevedore or shipyard is improvidently

failing to guard employees against it. Id. at 1029.

This interpretation of Scindia has also been followed by

the Fourth Circuit in its recent decision of Bonds v. Morten-

sen and Lange, 717 F.2d 123 (4th Cir. 1983). The court

found that Scindia “. . made it clear that the shipowner

may rely on the stevedore in the first instance to avoid ex-

posing the longshoremen to unreasonable hazards’’. Id. at

126. It also recognized that the owner need not intervene

to protect longshoremen unless the stevedore’s judgment

in carrying out his task is obviously improvident. Finding

that the shipowner was not required to anticipate that the

stevedore could not avoid the dangerous condition involved

therein, the court concluded that the shipowner did not have

a duty to intervene.

The application of Scindia by the Fourth and Fifth Cir-

cuits indicates that when the contractor begins its operations,

a vessel owner has no duty to discover dangerous conditions

19

that develop during those operations. Scindia makes it clear

that the obligation to provide a safe working environment is

placed on the contractor as employer of the service crew

pursuant to 33 U.S.C. §941. In order for the owner to have

an obligation to intervene in the stevedoring, repair or

building operations, he must have actual knowledge of the

danger coupled with either a realization that the contractor

cannot reasonably be expected to avoid the risk or actual

knowledge that the contractor is proceeding improvidently

disregarding the risk. The Sixth Circuit, on the other hand,

has used imputed knowledge and an unqualified duty to

intervene to impose liability on Petitioner Jeffboat in this

case. Jeffboat would not have been liable on the facts of this

case in either the Fourth or the Fifth Circuits, and that

inconsistency should be reviewed under a writ of certiorari.

CONCLUSION

The decision of the Court of Appeals for the Sixth Circuit

in this matter violates the equal treatment rationale of the

United States Supreme Court’s decision in Jones & Laughlin

Steel Corp. v. Pfeifer, 462 US. , 103 S.Ct. 2541

(1983). If the errors of imputing knowledge and mandating

an ipso facto duty to intervene are allowed to stand, a

tremendously improved prospect for recovery will be granted

to those vessel service employees who happen to be em-

ployed by the vessel owner. Such a result also nullifies the

tort immunity provisions in §5 of the Act. Although the

Act clearly specifies that an employer cannot be held liable

for negligence of fellow servants engaged in contracted

services, the vessel owner, in all instances, would be found

liable for the same employees’ mere knowledge of an unsafe

condition.

The Sixth Circuit in this matter also confronts shipbuilders

such as petitioner with substantial dual liabilities to em-

ployees engaged in new construction activity. So long as the

20

builder is the owner of the vessel under construction prior to

delivery to the purchasing party, it stands exposed for general

damages under tort liability for injuries sustained by em-

ployees engaged in the construction work, if the particular

employee can show that his injury was caused in part by a

hazard known to members of his construction crew, or,

perhaps, known only to himself. It will not matter if the

hazard is one which the employer as builder of the vessel is

obligated by applicable safety regulations or industry custom

to control; so long as he has the constructive knowledge

imputed to him from the co-workers, he will be liable as

owner for failing to intervene on the basis of that knowledge.

At the same time, he will bear the substantial obligation to

pay compensation benefits defined by the Act in question in

all circumstances. The resulting dual liability cannot be re-

conciled with the Congressional intent expressed in the

statute and the legislative history; it is in conflict with

decisions of other circuits which have analyzed the question

of the standard of liability of the owner-employer; and it is

fundamentally at odds with the decision of this court in

Scindia Steam Navigation Co. v. de los Santos, and Jones

and Laughlin Steel Corp. v. Pfeifer. A writ of certiorari

should issue to the Court of Appeals for the Sixth Circuit

to review the issues raised by its decision.

Respectfully submitted,

ROBERT M. CONTOIS, JR., Court}

of Record

GEORGE R. ALVERY, JR.

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE &

DENEGRE

21

225 Baronne Street - 28th Floor

New Orleans, Louisiana 70112

Telephone: (504) 581-6641

ALBERT F. REUTLINGER

MIDDLETON & REUTLINGER

Louisville, Kentucky 40202

Telephone: (502) 584-1135

ATTORNEYS FOR JEFFBOAT, INC.,

PETITIONER

A-l

IN THE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Action No. C 76-0095-L (A)

PAUL ROBERTSON, Administrator of the Estate of

William L. Robertson

Plaintiff

v.

JEFFBOAT, INC.

1030 East Market

Jeffersonville, Indiana

and

Louisiana Barge Company (May be served at:)

c/o Louisiana Towing Company, Inc.

P.O. Box 4846, Greenville, Mississippi 38701

OR

c/o Louisiana Towing Corporation

2240 Peters Road, Harvey, Louisiana 70058

and

Unknown Defendants

Defendants

FINDINGS OF FACT, CONCLUSIONS OF LAW AND

MEMORANDUM OPINION

Entered November 6, 1979

Plaintiff's decedent, William H. Robertson, known as

Billy Robertson, was an employee of Jeffboat, Irc. on

A-2

February 27, 1975, where he was working on the bow of a

metal “hopper” barge as part of a sand-blasting crew. The

barge was owned by Jeffboat, Inc. While Billy was working

with Arthur Lamb, who was approximately 100 feet from

him, Billy disappeared from the barge and drowned. The

drowning apparently occurred about 10:30 p.m. Billy was

27 years of age at the time of his death and was earning

$5.27 per hour, plus a 15 cent differential when he died.

He was not married and his only survivors are his parents

and a brother.

No one actually saw Billy fall into the river, and the

exact cause of hi$ death is, therefore, unknown. Plaintiff

introduced proof which indicated that the river was 8 to

10 feet above its normal pool, and that the current was

faster than usual, and that there was debris in the river.

The plaintiff also introduced evidence to show that the

lighting conditions aboard the barges, and particularly the

barge on which Billy was working, were unsatisfactory be-

cause of the height of the river. Some of this testimony

was rather equivocal. It was established that there were

no life rings on either end of the barge, no temporary light-

ing nor a temporary guardrail.

Billy and his fellow-employees were not wearing life

jackets, although the employer introduced evidence to

show that there were company rules requiring the wearing

of life jackets. The company apparently took no steps to

see to it that the rules were complied with in this respect.

The area where Billy was last seen was approximately

4% to 5 feet wide. There were some cabals located on the

barge about the middle of the bow of the barge in the area

where Billy was last seen. Billy was pulling a hose which

was used for sandblasting, and was walking backwards at

the time when he was last seen.

A-3

Following Billy’s death, there was a hearing held by the

Benefits Review Board of the United States Department

of Labor, which determined that the decedent’s parents

were not entitled to compensation benefits under the United

States Longshoremen’s and Harbor Workers’ Compensation

Act. 33 U.S.C. Sec. 901, et seq. That determination was not

appealed.

Decedent’s parents spent $1,600 for his funeral and Jeff-

boat reimbursed them in the amount of $1,000. Plaintiff

orginally brought suit under the Jones Act for negligence

and under general Maritime Law for unseaworthiness. Jeff-

boat was granted summary judgment on these claims, but

the plaintiff amended his complaint to allege a claim under

33 U.S.C. 905 (b).

Title 33 U.S.C. Sec. 905(b) represents a revision of 33

U.S.C. Sec. 905 which was enacted in 1927. The statute,

taken in conjunction with 33 U.S.C. Sec. 905(a), has been

held to provide the following rights and obligations:

1. A longshoreman or repairman who is injured on

board a vessel may sue the vessel for negligence of the vessel;

2. The liability of the vessel to the longshoreman or

repairman is to be determined by land-based principles

and not maritime law;

3. The longshoreman’s or repairman’s employer is li-

able only for workman's compensation benefits which have

been greatly increased;

4. The vessel is not to be charged with liability for the

negligence of those engaged in private stevedoring services;

5. The vessel no longer has a nondelegable duty to

provide a safe place to work.

See Hurst v. Triad Shipping Company, 554 F.2d 1237,

1241-43 (3rd Cir. 1977); Gay v. Ocean Transp. & Trading,

Ltd., 546 F.2d 1233 (Sth Cir. 1977); Napoli v. (Transpacific

A-4

Carriers Corp. and Universal Carriers, Inc.) Helenic Lines,

Lid., 536 F.2d 505 (2nd Cir. 1976); Griffith v. Wheeling

Pittsburgh Steel Corporation, 521 F.2d 31 (3rd Cir. 1975),

cert. denied, 423 U.S. 1054 (1976).

The 1927 Act had provided that the liability of an em-

ployer was to be exclusive and in place of all other liability

of the employer to the employee, 33 U.S.C. Sec. 905, now

33 U.S.C. Sec. 905(a); however, the Supreme Court scut-

tled this intent by its decisions in Ryan Stevedoring Com-

pany, Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124

(1956) and Seas Shipping Company vy. Sieracki, 328 U.S.

85 (1946), which held that the employee could sue the

vessel for unseaworthiness and the vessel could then demand

indemnity from the stevedore, thereby resulting in situa-

tions where stevedores not only paid compensation to the

employee but also paid damages. This 1972 Act preserves

the right of the worker to sue the vessel but limits his re-

covery to negligence created only by the vessel. The vessel

is no longer liable under maritime principles, but may be

liable under land-based principles. The stevedore receives

his quid pro quo in that he is no longer liable for work-

man’s compensation and damages, but only for the former.

Where the injured party is an employee of a party which

is both the owners of the vessel and the furnisher of repair

services, such as in the case here, the courts have held that

the employer in its capacity as owner of the vessel, must

be governed by Section 343A(1) of the Restatement of

Torts 2d whic, reads as follows:

“A possessor of land is not liable to his in-

vitees for physical harm caused to them by

any activity or condition on the land whose

danger is known or obvious to them, unless

the possessor should anticipate the harm

A-5

despite such knowledge or obviousness.”

(Emphasis added).

This doctrine was adopted in Napoli y. (Transpacific Car-

riers Corp. and Universal Cargo Carriers, Inc.) Helenic Lines.

Ltd., supra, and was approved in the case of Lopez v. A/S’

D/S Svendborg, and D/S of 1912 A/S, 581 F.2d 319 (2nd

Cir. 1978).

In the absence of any Sixth Circuit decision in point since

the passage of the 1972 Act, this Court will adopt the more

modern trend of opinion embodied in Section 334A, supra.

It appears from the principles enunciated above, that Jeff-

boat, in its role as owner of the vessel, could not be held

liable if the only negligence consisted of the failure of the

lights on the land to illuminate the barges properly. This

would be a failure of its duty as repairman. However, it

seems to the Court that there is sufficient evidence of negli-

gence on the part of the vessel, under the principles set out

in section 343A to warrant recovery on the part of plaintiff.

The owners of the vessel knew that plaintiff would be work-

ing at night on a high river on a relatively narrow walkway

without making any provisions for lighting on board the

barge and without furnishing any life rings or alarm bells.

The instant case is somewhat analogous to that of Samuels

v. Empresa Lineas Maritimas Argentinas, 573 F. 2d 884

(Sth Cir. 1978). There the plaintiff was injured when unload-

ing cargo from a vessel. While unloading it, he slipped or

stepped backwards into an empty space after getting a

drink of water. The opening would have been open and

obvious had the area been well-lighted. The ship was being

unloaded at night and the injury occurred at night. Some

lights had been placed by the stevedore. The testimony was

equivocal as to how good the lighting was. There was testi-

A-6

mony that if the longshoremen had compluined that the hole

was too dark to work safely, the work would have been

stopped. There was also evidence that the gang foreman

complained to ship personnel that they had “pretty dim

lights’ and work was not stopped.

The court held that there was sufficient evidence for a

jury to find that the vessel owner should have realized

that there was an unreasonable risk of harm to a longshore-

man, should have expect[ed] that the longshoreman would

not discover or realize the danger, and failed to exercise

reasonable care to make the condition safe or warn the

longshoreman of it. See 573 F.2d at p. 886.

In the instant case, any negligence of the defendant with

regard to the life jackets should properly be considered

only as negligence of the employer, or stevedore, or repair-

man, rather than that of the vessel, but even so, and assum-

ing that the bulk of the negligence which caused the dece-

dent’s death was that of the repairman rather than that of

the defendant in its role as vessel owner, we believe that

the vessel owner’s negligence with regard to inadequate

lighting and failure to supply life rings or alarm bells is

sufficient to establish its concurrent negligence.

In the case of Edmonds v. Compagnie Generale Trans-

atlantique, No. 78-479 decided June 27, 1979, the Supreme

Court held that where a jury determined that the long-

shoreman had suffered total damages of $100,000 while

unloading a vessel, and that he was responsible for 10% of

the total negligence and that the stevedore’s fault contri-

buted 70%, and the shipowner was accountable for 20%,

still the longshoreman was entitled to a total award of

$90,000. The court held that Congress did not intend to

modify the pre-existing rule that a longshoreman who was

injured by the concurrent negligence of the stevedore and

A-7

the ship may recover for the entire amount of his injuries

from the ship. See p. 9 of the slip opinion.

The principle is well settled that even in maritime in-

juries which have occurred since 1972, a plaintiff's contribu-

tory negligence is not a bar to his recovery of damages.

See Edmonds v. Compagnie Generale Transatlantique,

supra, and Samuels v. Empresa Maritimas Argentinas, supra.

In the instant case, plaintiffs decedent’s failure to wear

a life jacket, knowing of the company’s rules and knowing

of the hazards which he faced on the barge, leads the Court

to attribute 50% of the cause of his death to his own negli-

gence. Had there been no deduction on account of plain-

tiffs decedent’s comparative negligence, the estate would

have been entitled to recover $15,000 on behalf of dece-

dent’s mother and $15,000 on behalf of decedent’s father

for the loss of decedent's society.

Defendant contends that plaintiff is not entitled to re-

cover any sum for loss of services or support provided by

plaintiff's decedent to his parents. It is true that under

the Longshoreman’s Act, 33 U.S.C. Sec. 901, et seq., this

same claim was made and denied by the appropriate admin-

istrative body and that no appeal was taken. However, in

the case of Hamilton v. Canal Barge Company, Inc., 395

F. Supp. 978 (E.D. La. 1975), former District Judge Alvin

B. Rubin, now a Circuit Judge of the United States Court

of Appeals for the Fifth Circuit, a judge who has rendered

many excellent and definitive opinions in the field of mari-

time law, held that 1% is not proper to read a dependency

requirement into the Moragne v. State Marine Lines, 398

U.S. 375 (1970) action for wrongful death. As Judge Rubin

points out, neither the Jones Act nor the Death on the Hich

Seas Act require dependency for a parent to recover. There-

fore, he reasons that the same principles would apply to

A-8

the wrongful death action under the general maritime law.

Hamilton, supra, involved a case very much like the

instant case in that plaintiff lived with his parents, assisted

with houschold expenditures from time to time mowed the

pasture, and took care of his younger brother, but did not

pay rent. In the instant case, the evidence shows that plain-

tiff performed some services for his parents such as paint-

ing and working about the house. The Court concludes that

$3,000 per parent would be a proper allowance for the

services and support which plaintiffs decedent rendered

his parents during his lifetime. See Hamnilton, supra, Finally,

the total award made to each parent of $18,000 must be

reduced by 50% in order to reach the correct amount to be

paid them.

Defendant’s argument that plaintiff's decedent is barred

from asserting a claim for support is without merit, inas-

much as the previous litigation involved the right of the

parents as alleged dependents of the decedent. The Act

under which they were proceeding required that they show

dependency. Since Judge Rubin’s opinion in Hamilton, supra,

indicates that dependency is not required in the action for

wrongful death, it, therefore, follows that issues reached in

the administrative proceeding and the decision therein are

not binding on this Court in this action.

In conclusion, we feel that an award of $18,000 reduced

by 50% would be appropriate for each parent. Unreim-

bursed funeral expenses should be added to these amounts

in the sum of $600. We observe that in Mobil Oil Corp. v.

Higginbotham, 436 U.S. 68 (1978), 98 S.Ct. 2010, the

Supreme Court was not asked to pass upon what is desig-

nated as “large sums that the District Court would have

awarded for loss of society.”’ In that case the large sums

were $50,000 for a surviving spouse and $20,000 for older

A-9

children of a deceased husband.

We have this day entered a final judgment in accordance

with this opinion.

Dated 1 1-6-79

s/ Charles M. Allen

Chief Judge

ce: Counsel of Record

JUDGMENT -—Entered November 6, 1979

This action, having been tried to the Court without a jury,

and the Court, having entered its findings of fact, conclusions

of law and memorandum opinion and being fully advised in

the premises,

IT IS ORDERED AND ADJUDGED that plaintiff, Paul

Robertson, Administrator of the estate of William H. Robert-

son, recover from defendant, Jeffboat, Inc., the total sum of

$18,600, said sums to be paid in equal amounts to the par-

ents of William H. Robertson.

Plaintiff is also entitled to recover his costs herein ex-

pended.

This is a final and appealable judgment and there is no just

cause for delay.

Dated 11-46-79

/s/ Charles M. Allen

Chief Judge

cc: Counsel of Record

A-10

No. 80-3136

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAUL ROBERTSON, Administrator of the

Estate of William L. Robertson,

Plain tiff-Appellee,

¥.

JEFFBOAT, INC.,

Defendant-Appellant.

On Appeal from the United States District Court

for the Western District of Kentucky

Decided and Filed June 19, 1981

Before: WEICK and MERRITT, Circuit Judges; GIL-

MORE, District Judge.*

MERRITT, Circuit Judge. Defendant, Jeffboat, Inc., a

shipbuilder, appeals the district court’s finding that its negli-

gence contributed to the death of plaintiffs decedent,

William Robertson. Jeffboat was Robertson’s employer and

the owner of a barge he was helping build at the time of his

death. The court below based an award to Robertson’s

parents on 33 U.S.C. §905(b), a provision of the Longshore-

men’s and Harbor Workers’ Compensation Act 33 U.S.C.

*The Honorable Horace W. Gilmore, Judge, United States District

Court for the Eastern District of Michigan, sitting by designation.

A-11

8901 et seg. (LHWCA). We agree with the reasoning of

District Judge Allen, and affirm the judgment below.

Robertson drowned after falling off a nearly-completed

barge that he was sandblasting in preparation for painting.

The accident occurred after dark, and no one saw or heard

him fall into the water. Trying the case without a jury, the

district court found that Jeffboat was negligent both in its

capacity as employer and as vessel owner, but it is only lia-

bility in the latter capacity that is relevant here. It found that

Jeffboat’s provision of ‘inadequate lighting and failure to

supply life rings or alarm bells is sufficient to establish its

. negligence” as vessel owner. Applying a comparative

negligence doctrine that reduced plaintiff's recovery by fifty

percent, the court awarded $18,600 in damages.

Plaintiff based his claim against Jeffboat on 33 U.S.C.

§905(b), which in pertinent part provides:

In the event of injury to a person covered

under this chapter caused by the negligence of

a vessel, then such person, or anyone other-

wise entitled to recover damages by reason

thereof, may bring an action against such

vessel. . . . If such person was employed

by the vessel to provide ship building or

repair services [as in this case], no such

action shall be permitted if the injury was

caused by the negligence of persons en-

gaged in providing shipbuilding or repair

services to the vessel [as distinguished from

the negligence of the owner of the vessel in

its capacity as owner]. The liability of the

vessel under this subsection shall not be

based upon the warranty of seaworthiness or

a breach thereof at the time the injury oc-

curred.

A-12

The amendments to the LHWCA replaced the worker's

former right to sue for injuries caused by the employer's

negligence with an expanded unemployment compensation

benefits program funded by the employer. Workers retained

the right to sue vessel owners for injuries caused by the

owner’s negligence, even where the owner is also a ship-

builder employer of the injured workman. Those changes

are reflected in §905(b). In this case Jeffboat is both owner

and employer, but the statutory structure requires that

negligence in the two capacities be distinguished. See Smith

vy. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795

(2d Cir. 1979).

The legislative history to the 1972 amendments makes

clear that §905(b) incorporates land-based principles of

liability. H.R.Rep.No. 92-1441, reprinted in {1972} USS.

Code Cong. & Ad. News 4698, 4703. The shipowner is not

strictly liable for injuries suffered by longshoremen work-

ing on its ship. In Scindia Steam Navigation Co. v. Santos,

49 U.S.L.W. 4405 (April 21, 1981), a decision issued after

oral argument in this case, the Supreme Court determined

the principles applicable to suits by longshoremen against

shipowners. The Court concluded that while “the ship-

owner has no general duty by way of supervision or in-

spection to exercise reasonable care to discover dangerous

conditions that develop” after stevedoring operations have

begun, 49 U.S.L.W. at 4410, it does owe a duty of care to

workers for dangerous conditions of which it has actual

knowledge. In the case, the Court affirmed the Court of

Appeals’ reversal of summary judgment granted to the

shipowner against a longshoreman injured by a malfunc-

tioning winch. It remanded the case, inter alia, for further

inquiry into the factual question of whether the shipowner

had actual knowledge of any defect in the winch that de-

veloped after the shipowner relinguished control to the

stevedore.

A-13

In the instant case as well, liability turns on the ship-

owner's knowledge of dangerous working conditions, and on

the foreseeability of the harm they might cause. As Jeffboat

argues, its liability in this case must be based upon its negli-

gence as owner rather than employer, and its actions in the

two capacities must therefore be kept distinct. The question

is whether the knowledge of defendant as shipbuilder that

the employee would be working on the ship at night with-

out adequate lighting or railings to protect him from falling

is the kind of knowledge that can also be attributed to de-

fendant as owner. Because Jeffboat is both owner and em-

ployer, any knowledge chargeable to it as employer must

also be attributed to it as owner. What the employer knew,

the owner knew. The district court was not clearly in error

in concluding that Jeffboat should have anticipated the harm

that inadequate lighting and the absence of safety measures

might cause.

Accordingly, the judgment of the district court is affirmed.

ORDER DENYING PETITION FOR REHEARING

Filed September 20, 1981

Before: WEICK and MERRITT, Circuit Judges; GIL-

MORE, District Judge.*

A majority of the court having not voted in favor of an

en banc rehearing, the petition for rehearing has been referr-

ed to the hearing panel for disposition.

Upon consideration, it is ORDERED that the petition for

rehearing be and hereby is denied.

*The Honorable Horace W. Gilmore, Judge, United States District

Court for the Eastern District of Michigan, sitting by designation.

A-14

ENTERED BY ORDER OF THE COURT.

/s/ John P. Hehman

Clerk

A-15

SUPREME COURT OF THE UNITED STATES

No. 81-935

Jeffboat, Inc..,

Petitioner,

¥.

Paul Robertson, Administrator of the Estate of

William L. Robertson

ON WRIT OF CERTIORARI to the United States Court

of Appeals for the Sixth Circuit.

THIS CAUSE having been submitted on the petition for

writ of certiorari and response thereto,

ON CONSIDERATION WHEREOF, it is ordered and

adjudged by this Court that the judgment of the above court

in this cause is vacated with costs, and that this cause is

remanded to the United States Court of Appeals for the

Sixth Circuit for further consideration in light of Jones &

Laughlin Steel Corporation v. Pfeifer, 462 US.

(1983).

IT IS FURTHER ORDERED that petitioner, Jeffboat,

Inc., recover from Paul Robertson, Administrator of the

Estate of William L. Robertson Two Hundred Dollars

($200.00) for its costs herein expended.

June 27, 1983

Clerk’s costs: $200.00

A-16

No. 80-3136

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAUL ROBERTSON, ADMINISTRATOR

OF THE ESTATE OF WILLIAM L.

ROBERTSON,

Plaintiff-Appellee

¥;

JEFFBOAT, INC.,

Defendant-Appellant

ORDER

Filed October 25, 1983

Before: MERRITT, Circuit Judge; WEICK, Senior Circuit

Judge; and GILMORE, District Judge.*

In the above-entitled case the Supreme Court vacated our

previous judgment remanding the case for reconsideration

in light of Jones & Laughlin Steel Corp. v. Pfeifer, 103

S.Ct. 2541 (1983). We have read and reread the Pfeifer

opinion by the Supreme Court. We are unable to see any

conflict between the Pfeifer opinion and our previous

opinion. In fact, the reasoning of the Pfeifer opinion and our

reasoning on the liability issue in the case appears to be the

same.

Being unable to find any conflict between the two

*The Honorable Horace W. Gilmore, Judge, United States District

Court for the Eastern District of Michigan, sitting by designation.

A-17

Opinions, we hereby order that our previous opinion and

judgment be reinstated and that it become the final judg-

ment of this Court in the case after reconsideration upon

remand by the Supreme Court.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk