Amicus Curiae Brief — Southwest Marine, Inc. v. Gizoni

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1990

SOUTHWEST MARINE, INC.,

Petitioner,

vs.

BYRON GIZONI,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

AMICUS CURIAE BRIEF

IN SUPPORT OF REVERSAL

WINSTON E. RICE FORREST BOOTH

GEORGE J. FOWLER, III KURT L. MICKLOW

EILEEN R. MADRID EDWARD M. BULL, III

(Counsel of Record] RICE, FOWLER, KINGSMILL,

RICE, FOWLER, KINGSMILL, VANCE, FLINT & BOOTH

VANCE, FLINT & BOOTH One Embarcadero Center

650 Poydras Street, Suite 2600 Suite 3550

New Orleans, Louisiana 70130 San Francisco, California 94411

Telephone: (504) 523-2600 Telephone: (415) 399-9191

Attorneys for

Global Marine, Inc.,

Halliburton Services,

Ingram Industries, Inc.,

Quality Shipyards, Inc.,

Reading & Bates Corporation,

Tidewater, Inc. and

Zapata Gulf Marine Corporation

YO

INTEREST OF AMICI CURIAE

Global Marine, Inc., Halliburton Services, Ingram

Industries, Inc., Quality Shipyards, Inc., Reading & Bates

Corporation, Tidewater, Inc. and Zapata Gulf Marine

Corporation each have employees engaged in maritime

employment on the navigable waters of the United States and

adjoining piers, docks, structures or other areas customarily

used in loading, unloading, repairing, or building vessels.

These employers also own and operate vessels and floatable

structures or platforms engaged in operations on inland

navigable waters of the United States and on the high seas.

They are defendants in frequent and extensive

litigation involving the determination of status questions

under both the Jones Act and the Longshore and Harbor

Workers’ Compensation Act. -This litigation largely consists

of multiple inconsistent claims for which these employers

must procure two entirely different types of insurance

coverage. For that reason, these employers wish for the Court

to have their views and reasons for reversal of the ruling

below which conflicts with the expressed Congressional

intent underlying the Longshore Act, and will only serve to

further muddy the waters in seaman status cases.

If the decision below is permitted to stand, seaman

status questions will henceforth be absolutely unpredictable

and uniformly unresolvable at the trial court level. The

number of fact-based seaman status appeals will multiply

exponentially, requiring case by case appellate determination

by an already overburdened court system.

The purpose of this brief is to persuade the Court to

reverse the Ninth Circuit decision and to adopt a seaman

status rule similar to that in Pizzitolo in order to establish

uniformity of decisions consistent with express statutory

provision and legislative intent.

All parties to this action have consented in writing to

the submission of this brief.

—

TABLE OF CONTENTS

PAGE

INTEREST OF AMICICURIAE ...................... i

TABLE OFCONTENTS ........................... iii

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

SUMMARY OF ARGUMENT ....................... l

Dee ee ccccccccces 4

I. The Ninth Circuit Opinion Contradicts

the Recent Unanimous Decision

in McDermott International, Inc. v.

cee a. a

Il. The Ninth Circuit Decision Conflicts with

Most Harbor-Based Jones Act/LHWCA

EEE EE oo

Il. The Ninth Circuit Decision Conflicts with

the Statutory Language and the Legislative

Development of the Jones Act and the

sg ccc cc cccecccces: 12

IV. The Pizzitolo Rule F liminates Much of the

Confusion Created by the Application of

Seaman Status Tests in the Harbor and

Accurately Delineates the Statutory

Interface Between the Jones Act

Tee ee 15

V. Seaman Status Should Often be Determined

by Summary Judgment and by Directed

Se i

Nee cs cece cc ccecccecce: 29

iv

TABLE OF AUTHORITIES

Cases

Allen v. Seacoast Products, Inc.,

Se EG ED ob ces cccccesceveuadnnces 24

Anderson v. Liberty Lobby, Inc.,

477 US. 242, 106S.Ct. 2505,

Se REED Swecnnccncsccsesctcececewss 25-26

Ardoin v. J. Ray McDermott & Co.,

, 641 F.2d 277 (5th Cir. 1981) ...........00.0.00..0..... 24

Bach v. Trident Steamship Co., Inc.,

oe rr 1,11

Balfer v. Mayronne Mud & Chemical Company,

762 F.2d 432, 434 (5th Cir. 1985) .................... 10

Barrett v. Chevron U.S.A., Inc.,

781 F.2d 1067 (5th Cir. 1986) (en banc) ..... 4,11,14,17,18

Barrios v. Louisiana Constr. Materials Co.,

Se ae Be I, nce ccccccecsccvcvceoncs 14

Bernard v. Binnings Construction Co., Inc,

i, 4 fgaGEaaqenyayES aaa er ree? 26

Bouvier v. Krenz,

702 F.2d 89 (Sth Cir. 1963) ..................... 10,11,14

Brown v. ITT Rayonier, Inc.,

497 F 20 234 (Sth Cir. 1974) ................0000e 11,14

Buras v. Commercial Testing & Engineering Co.,

Tae F .2G owe (Ste Cor. 19B4) .... 2. ee ce eee ces

Burns v. Anchor-Wate Co.,

469 F.2d 730 (5th Cir. 1972) ..............00.0..000...

Carumbo v. Cape Cod SS. Co.,

ee a SED scan cecdavccnddonecederes

Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548,

91 L.Ed.2d 26611986) .................. Pepe eee

Cox v. Otis Eng’g Corp.,

ED nos oo cunccntccccccssasuse

Fontenot v. AWIL, Inc.,

923 F.2d 1127(5thCir.1991) ......................

Fox v. Taylor Diving & Salvage Co.,

694 F.2d 1349 (Sth Cir. 1983) .......................

Guidry v. Continental Oil Company,

ea ERR

Guidry v. South Louisiana Contractors, Inc.,

4 ) . § EEE

Holland v. Allied Structural Steel Corp.,

539 F.2d 476 (Sth Cir. 1976) .... 2.0... cece cece eee

International Stevedoring Co. v. Haverty,

SD wctdcvccacescadenbnceacéassaesss 6,13

Johnson v. John F. Beasley Const. Co.,

Ts cE eaeabbee

Jones v. Mississippi River Grain Elevator Co.,

a ueenakuveeeses

Keener v. Transworld Drilling Co.,

EE OE ovacnecdeecvecuveseces 10,24

Ketnor v. Automatic Power, Inc.,

EE, DEED once bdscccsecscccscoesses

Longmire v. Sea Drilling Corporation,

G10.F 26 1342 (Sth Cir. 1960)... 2... eee eee

vil

McDermott International, Inc. v. Wilander,

498 U.S. __, 111 S.Ct. 807,

Ne ee eed c cdc ec eent en ewenee passim

McKie v. Diamond Marine Co.,

EE IE, ED onc ccvccccconcoccesceses 14

Munguia v. Chevron Company, U.S.A.,

Oe Sc wcocnscssuvovssineces 14

Offshore Company v. Robison,

266 F.2d 769 (5th Cir. 1959) ........... 4,5,16,17,18,21,22

Perez v. Marine Transport Lines,

160 F Supp. 853 (E.D.La. 1958) ...................... 27

Pizzitolo v. Electro-Coal Transfer Corp.,

812 F.2d 977 (5th Cir. 1987), cert. denied,

rN leew eue passim

Prinzi v. Keydril Co.,

By ee Se EE, BED nc ccccccccccccccccvessenes ll

Rotolo v. Halliburton Co.,

317 F.2d 9 (5th Cir.), cert. denied,

375 U.S. 852, 84S.Ct. 111;

a 10

Searcy v. E.T. Slider, Inc.,

ee ee CG ee UD... vececcwscueuss 22

Viii

Seas Shipping Co. v. Sieracki,

lo cube ieenesuee

Senko v. LaCrosse Dredging Corp.,

EE NT a ane ea

Sharp v. Wausau [Insurance Companies,

oe

South Chicago Coal & Dock Co. v. Bassett,

RTT SSE a

Swanson .. Marra Bros., Inc.,

GER 5 a

Thomas v. Peterson Marine Serv.,

411 F.2d 592 (5th Cir. 1969), cert. denied,

396 U.S. 1006, 90 S.Ct. 562, 24 L.Ed.2d 499 (1970)

Tullos v. Resource Drilling, Inc.,

Fe © Ee BD occ ccc cccccccccceccecess

Wallace v. Oceaneering International,

gg Af EE

10

ix

Wenzel v. Seaward Marine Services, Inc.,

_ 4 | <. % aS 3,22

White v. Valley Line Co.,

Tae Pe Be (Bem Cie. 1GBE) 2... cc ccc cece scccnes 10,11

Williams v. Weber Management Services, Inc.,

js | . «<> | rT sy 1,10

Statutes and Rules

33 U.S.C. §§ 901-950 (Longshore and

Harbor Workers’ Compensation Act) ............ passim

SEED -oceuanncdecnesvewscauescaws 8,21,24,25

33 U.S.C. §902(3)G) ..................2 7,8,12,13,15,28

3. TTT TTT TTT TTT TT eee 13,21,22

43 U.S.C. § 1333(b) (Outer Continental Shelf

EE RESP reas Fee eee TEC T ETE TET CTT 3

46 U.S.C. § 688 (The-Jones Act) ................0055- 1,5

Federal! Rules of Civil Procedure, Rule 56 ......... 25,26

Miscellaneous

Bull, Seaman Status Applied: A Practical Guide

To Status Determination, 1 U.S.F. Maritime

A a 6

Engerrand & Bale. Seaman Status Reconsidered,

AN SUPE 60 nc ccvcdcceececeeccisiner 6,12

Engerrand, Seaman Status Reconstructed, z

a ee ans ve akandeewcen 12

SUMMARY OF ARGUMENT

The decision of the Ninth Circuit in this case should be

reversed because the opinion is contrary to the legislative

development of the Longshore and Harbor Workers’

Compensation Act! and the Jones Act” and directly

contradicts United States Supreme Court precedents,

including the recent unanimous decision in McDermott

’

International, Inc. v. Wilander,’ defining the term “seaman’

and delineating the distinction between land-based maritime

workers covered by the LHWCA and those relegated to Jones

Act remedies. The decision below also conflicts with the body

of jurisprudence denying seaman status, as a matter of law, to

workers who have no permanent assignment to a vessel or

fleet of vessels.*

l. 33 U.S.C. $$ 901-950 (1988), hereinafter “LHWCA” or

“Longshore Act.”

2. 46 U S.C. § 688(a)

3. 111 S.Ct. 807(1991), hereinafter “Wilander.”

4. See Pizzitolo v. Electro-Coal Transfer Corp., 812 F 2d 977,

983 (5th Cir 1987), cert. denied, 108 S Ct. 1013 (1988), and

its progeny, Williams v. Weber Management Services, Inc.,

839 F 2d 1039 (5th Cir. 1987), Fontenot v_ AWL Ine. ,923 F.2d

1127 (5th Cir 1991); and Bach vy. Trident Steamship Co.,

Inc., 920 F 2d 322 (5th Cir 1991)

This Court should adopt the rule enunciated in

Pizzitolo v. Electro-Coal Transfer Corp.,’ which is entirely

consistent with this Court’s unanimous decision in

Wilander,® and restricts the definition of Jones Act seamen to

“members of a crew of a vessel” in accordance with the

expressed legislative intent of the LHWCA and the Jones

Act. Such a seaman status rule, already developed and

fine-tuned by the Fifth Circuit, eliminates confusion

surrounding the status of harbor workers and furthers the

purposes and intent underlying the LHWCA to confine Jones

Act coverage to members of a crew of a vessel. Additionally,

this status rule, when considered with the principles

enunciated in Wilander, includes all employees permanently

aboard a vessel and accounts for the technology of special

purpose oil field vessels engaged in operations on navigable

waters.

LHWCA coverage operates differently in the oil field

and in the harbor. These distinct circumstances have

confounded the formulation of a general seaman status test

5. 812 F.2d 977 at 983.

6. 111 S.Ct. 807 (1991).

which effectuates the Congressionally intended interaction

among the Jones Act, the LHWCA and the Outer Continental

Shelf Lands Act (OCSLA),’ which applies the LHWCA to

workers on fixed platforms or other structures on the outer

Continental Shelf. Considering the legislative development

of the Jones Act, the LHWCA and the OCSLA in context, the

Pizzitolo/Wilander ruie is a valid and reliable seaman status

test which adheres to the statutory boundaries intended by

Congress.

The principles enunciated by the Ninth Circuit in its

decision below and in its earlier decision in Wenzel v.

Seaward Marine Services, Inc.,* contravene the legislative

history and development of the Jones Act and the LHWCA by

including land-based maritime workers and harbor workers

within the class of Jones Act seamen.

These maritime employers urge reversal of the Ninth

Circuit and the adoption of a Pizzitolo status rule.

~)

43 USC. 3 1333(b)

709 F 2d 1326 (9th Cir. 1983)

a

ARGUMENT

I. The Ninth Circuit Opinion Contradicts the

Recent Unanimous Decision in McDermott

International, Inc. v. Wilander.

The recent decision of this Court in Wilander’ resolved

the longstanding conflict between the Fifth Circuit,'® on the

9. 111 S.Ct. 807 (1991).

10. The Fifth Circuit first synthesized its seaman status test in

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

1959). Twenty-six years later, a divided Fifth Circuit sat en

banc and reaffirmed its Robison test with some modifications

in Barrett v. Chevron U.S.A., Inc., 781 F.2d 1067, 1074 (5th

Cir. 1986) (en banc). The Fifth Circuit's Robison seaman

status test states:

|T|here is an evidentiary basis for a Jones Act

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

that the injured workman was assigned

permanently to a vessel (including special

purpose structures not usually employed as a

means of transport by water but designed to

float on water) or performed a substantial

part of his work on the vessel; and (2) if the

capacity in which he was employed or the

duties which he performed contributed to the

function of the vessel or to the

accomplishment of its mission, or to the

operation or welfare of the vessel in terms of

its maintenance during its movement or

during anchorage for its future trips.

266 F.2d at 779.

one hand, and the Third!! and Seventh!” Circuits, on the

other hand, with respect to the legal standard for

t's

determining Jones Act’’ seaman status. The Wilander

decision expressly approved the second prong of the Fifth

Circuit’s seaman status test formulated in Offshore Company

v. Robison,'* which confers seaman status on all workers who

are more or less permanently assigned to a vessel or who

perform a substantial portion of their work aboard a vessel

and whose duties contribute to the function or mission of the

11. The Third Circuit had followed the more traditional

tripartite seaman status test originally enunciated by the

First Circuit in Carumbo v. Cape Cod SS. Co., 123 F.2d 991,

995 (1st Cir. 1941). That test requires “that the ship be in

navigation; that there be a more or less permanent

connection with the ship; and that the worker be aboard

primarily to aid in navigation.” Id. at 995

12. The Seventh Circuit had formulated its seaman status test in

Johnson v. John F. Beasley Construction Co., 742 F 2d 1054,

1061 (7th Cir. 1984), cert. denied, 469 U.S. 1211 (1985)

13. TheJones Act, 46U S.C. § 688(a), in pertinent part provides:

Any seaman who shall suffer personal

injury in the course of his emggeyment may,

at his election, maintais in action tor

damages at law, with the right of trial by

jury, and in such action al! statutes of the

United States modifying or extending the

common-law right or remedy in cases of

persona! injury railway emplovees shall

appiy ) (‘1982

14 266 F 2d 769. TNO (5th Cir 1959

vessel.'® In so doing, Wilander rejected the notion that a

maritime worker must "aid in the navigation of t¥e vessel” in

order to attain Jones Act seaman status.

The Wilander decision rests on the developmental

chronology of the Jones Act, passed in 1920, and the

t'6

Longshore Ac as a compensation scheme for harbor

workers passed in 1927, to eliminate vones Act benefits to

land-based maritime workers and harbor workers, and to

17

substitute a compensation remedy for those workers.'‘ In

Wilander the court recalled the incorrect supposition made in

Haverty'® that Congress would not willingly “have allowed

the protection to men engaged in the same maritime duties to

vary with the accident of their being employed by a land-

based stevedore rather than by the ship.”'9 But as Wilander

observed, “Congress would, and did [distinguish the

15. Id. at 779. See supra, note 10.

16. 330U.S.C. §§ 901-950 (1988).

17. Messrs. Engerrand and Bale, Seaman Status Reconsidered,

24S.Tex.. L.J. 431 (1983).

18. International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926).

19. Id. at 52. See Bull, Seaman Status Applied: A Practical

Guide To Status Determination, 1 U.S.F. Maritime Law

Journal, 43 (1989).

protection provided to maritime workers based upon whether

the worker was employed by the ship or by a stevedore in the

LHWCA\].”2°

Wilander establishes that the LHWCA and the Jones

Act are mutually exclusive statutes.*' In fact, the court there

observed that:

[I]t is odd but true that the key requirement for

Jones Act coverage now appears in another

statute [referring to “master or member of a

crew of any vessel” in 33 U.S.C. 902(3)(G)}.””

Consequently, under the principles enunciated in

Wilander, no land-based workers are “seamen.””" Wilander

also makes clear that “with the passage of the LHWCA,

Congress established a clear distinction between land-based

and sea-based maritime workers. The latter, who owe their

allegiance to a vessel and not solely to a land-based employer,

are seamen.”**

20 Wilander, 111 S.Ct at 813

21 Id

22 Id

23 Id

24 ld

Wilander sets out an important guideline for

determining the proper legal standard for seaman status

under the Jones Act -- whether the maritime worker is land-

based or sea-based. This pivotal factor of whether the worker

is land-based or sea-based is derived from an analysis of the

history of the statutory interplay between the Jones Act and

the LHWCA which delineated Jones Act seaman status.”° To

rule that a land-based ship repairman may be a Jones Act

seaman is in direct conflict with the principles established in

Wilander.

The Wilander decision is rooted in the historical

development of the law of seamen, especially in the context of

25. The LHWCA covers maritime workers, and at } 902/3),

defines maritime “employee” as

When used in this chapter --

(3) The term “employee” means any

person engaged in maritime employment,

including any longshoreman or other person

engaged in longshoring operations, and any

harbor-worker including a ship repairman,

shipbuilder, and ship-breaker, but such term

does not include --

*_* *

(G) a master or member of a crew of

any vessel .

the longstanding competing forces between the congressional

enactments of the Jones Act and the LHWCA and the court

decisions interpreting those acts. The legislative history of

the enactment and subsequent amendments to the LHWCA

and the Jones Act span most of this century. When

considering the issues of this statutory interface, as was done

in Wilander, the court should effectuate the express language

of the coverage provisions of the LHWCA within the context

of its entire legislative history.

ll. The Ninth Circuit Decision Conflicts with

Most Harbor-Based Jones Act/LHWCA

Decisions.

The Ninth Circuit decision should be reversed as

contrary to authoritative maritime jurisprudence. Not only

does the appellate opinion below contradict the recent

decision in Wilander,”® but both the result and the analysis

employed by the Ninth Circuit also conflict with the great

weight of jurisprudence denying seaman status to land-based

26 11iS Ct. 80711991)

10

employees, harbor workers and ship repairmen,”’ and

restricting Jones Act coverage to members of the crew of a

vessel who have more or less permanent attachment to that

27.

For example, Sh v. W Ins ompanies, 917

F.2d 885 (5th Cir. 1990) (welder/piledriver who lived ashore

engaged in rebuilding a train bridge over Lake

Pontchartrain); Williams v. Weber Management Services,

Inc., 839 F.2d 1039 (5th Cir. 1987) (repairman, hired from a

pool of temporary workers, to repair the drum and brake

assembly of a crane on a moored barge and to hose off its

deck); Pizzitolo v. Electro-Coal Transfer Corp., 812 F 2d 977

(5th Cir. 1987), cert. denied, 108 SCt. 1013 (1988)

(electrician employed by operator of a coal terminal and dock

on the Mississippi River who lived on shore and worked out

of a shore-based electrical shop maintaining and repairing

both shore-based machinery and electrical equipment on

vessels owned by his employer): see also, Balfer v_ Mayronne

Mud & Chemical Company, 762 F 2d 432, 434 (5th Cir

1985); Buras v_ Commercial Testing & Eng’g Co., 736 F 2d

307 (5th Cir. 1984, White v_ Valley Line Co., 736 F 2d 304

(5th Cir. 1984); Jones v_ Mississippi River Grain Elevator

Co., 703 F.2d 108 (5th Cir ), cert. dened, 464 US. 856, 104

S Ct. 175, 78 L.Ed.2d 157 (1983): Bouvier v. Krenz, 702 F 2d

89, 90 (5th Cir. 1983), Fox v. Taylor Diving & Salvage Co .

694 F.2d 1349 (5th Cir 1983): Guidry v. Continental Oil Co ,

640 F 2d 523 (5th Cir.), cert. denied, 454 US. 818, 102 SCt

96, 70 L.Ed. 2d 87 (1981); Cox v. Otis Engineering Corp, 474

F 2d 613 (5th Cir. 1973), Thomas v_ Peterson Marine Serv ,

411 F.2d 592 (5th Cir 1969), cert. denied, 396 US 1006, 90

S Ct. 562, 24 L_Ed.2d 499 (1970), Rotolo v_ Halliburton Co ,

317 F.2d 9 (5th Cir ), cert. denied, 375 US. 852, 84S.Ct. 111.

11 L.Ed. 2d 79 (1963)

11

vessel or a fleet of vessels.2* The Ninth Circuit opin‘on also

ignores the principles that Jones Act status be determined in

the context of the worker's entire employment with his

current employer or in view of the nature and location of his

work as a whole.”

28.

29.

Many maritime employees with undisputed maritime duties

or navigational functions are not Jones Act seamen because

they are not members of the crew of a vessel and they have no

permanent attachment to a vessel or identifiable fleet of

vessels. Bach v. Trident Steamship Co., Inc., 920 F 2d 322,

324-26 (5th Cir. 1991) (compulsory river pilot who was

engaged to pilot an oceangoing vessel through a section of

the Mississippi River between New Orleans and Pilottown):

Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991) ‘a

wireline operator employed by an oilfield service company

who performed wireline services for operators of various oil

production facilities both onshore and in state and federal

waters); Ketnor v. Automatic Power, Inc., 850 F.2d 236,

237-38 (5th Cir. 1988) (a service technician employed to

check and repair lights and horns on oil and gas wells in

state territorial waters and in the Gulf of Mexico); Barrett v.

Chevron U.S.A., Inc., 781 F.2d 1067, 1068-1069 (5th Cir.

1986) (en banc) (welder's helper engaged in maintenance and

repair work to offshore platforms and fixed structures in the

Gulf of Mexico who was quartered on a fixed platform called

“Mike's Structure).

See also Prinzi v. Keydril Co., 738 F.2d 707, 711 ‘5th Cir.

1984): White v. Valley Line Co., 736 F.2d 304, 306 (5th Cir.

1984), Wallace v. Oceaneering International, 727 F.2d 427,

432 (5th Cir. 1984); Buras v. Commercial Testing &

Engineering Co., 736 F 2d 307, 311 (5th Cir. 1984; Bouvier v.

Krenz, 702 F.2d 89, 90 (5th Cir. 1983); Longmire v. Sea

Drilling Corp., 610 F.2d 1342, 1347 (5th Cir. 1980); Brown v.

ITT Rayonier, Inc., 497 F 2d 234 (5th Cir. 1974).

12

Il. The Ninth Circuit Decision Conflicts with the

Statutory Language and the Legislative

Development of the Jones Act and the

LHWCA.

The decision of the Ninth Circuit should be reversed as

contradictory to the statutory interface inane the LHWCA

and the Jones Act. The finding by the Ninth Circuit that

Gizoni may be a Jones Act seaman contradicts the express

language of the LHWCA coverage definition which includes

“any person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring

operations, and any harbor-worker including a ship

repairman, shipbuilder, and ship-breaker . . .”””

Both the result and the analysis followed by the Ninth

Circuit opinion contravene the legislative development of the

Jones Act, and the LHWCaA. An authoritative study of the

legislative and jurisprudential development of the Jones Act

and the LHWCA is set out by Messrs. Engerrand and Bale,

Seaman Status Reconsidered, 24 S.Tex. L.J. 431 (1983). See

also, Seaman Status Reconstructed, 32S.Tex.L.R. (1991).

30 33 U S.C. § 902(3)"G)

13

While Congress was developing the LHWCA in 1926,

the Supreme Court held that the term “seaman” as used in

the Jones Act included a longshoreman employed on

navigable waters who sued his stevedore employer for the

negligence of a co-employee.*! Determined to grant land-

based maritime workers similar remedies as other land-

based workers, Congress passed the LHWCA within six

months of the Haverty decision, which also excluded land-

based workers from Jones Act coverage.

The LHWCA provided a compensation remedy for all

maritime workers injured on navigable waters, but expressly

excluded “a master or member of a crew of any vessel.”??

Thus, passage of the LHWCA in 1927 legislatively amended

31. Hlaverty, 272 U S. 50, 5211926)

32 33 USC. § 902(3)0G) and § 903/a)

14

the Jones Act and restricted the class of Jones Act seamen to

“masters or members of a crew of a vessel.”*%

Despite this legislative removal of land-based harbor

workers and longshoremen from the Jones Act, the courts

continued to expansively define the term “seaman.” Again,

in Seas Shipping Co. v. Sieracki,** this Court held that a

longshoreman was a “seaman” and as such entitled to the

warranty of seaworthiness. Still determined to treat harbor

workers the same as other land-based workers, the next

LHWCA amendment in 1972 expressly eliminated this

33. Wilander, 111 S.Ct. at 813. This result had been declared

previously by the Supreme Court in three earlier decisions,

South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251

(1940); Swanson v. Marra Bros., 328 U.S. 1, 5 (1946); Senko

v. LaCrosse Dredging Corp., 352 US. 370 (1957), and has

been reiterated in a string of Fifth Circuit decisions, Pizzitolo

v. Electro-Coal Transfer Corp., 812 F.2d 977, 981 (5th Cir.

1988), cert. denied, 108 S.Ct. 1013 (1988); Barrett v. Chevron

U.S.A., Inc., 781 F.2d 1067, 1070 (5th Cir. 1986) (en bance):

Munguia v. Chevron Company, U.S.A., 768 F 2d 649, 654

(Sth Cir. 1985); Bouvier v. Krenz. 702 F.2d 89, 91 (5th Cir

1983); Guidry v. South Louisiana Contractors, Inc., 614 F 2d

447, 452, n.2 (5th Cir. 1980); Brown v. ITT Rayonier, Inc.,

497 F.2d 234, 236 (5th Cir. 1974); Burns v. Anchor-Wate Co.,

469 F.2d 730, 732 ‘5th Cir. 1972): Barrios v. Louisiana

Constr. Materials Co, 465 F.2d 1157, 1161 n. 3 (5th Cir

1972); McKie v. Diamond Marine Co., 204 F 2d 132, 135-36

(5th Cir. 1953).

34. 3280U.S. 85, 9911946)

15

unseaworthiness action for longshoremen and substituted a

negligence action similar to that available to other land-

based workers.

Tne Ninth Circuit decision flies in the face of this

repeatedly expressed Congressional determination to treat

ship repairmen similarly to other land-based workers.

IV. The Pizzitolo Rule Eliminates Much of the

Confusion Created by the Application of

Seaman Status Tests in the Harbor and

Accurately Delineates the Statutory

Interface Between the Jones Act and the

LHWCA.

In 1987, the confusion generated by applying seaman

status tests to longshoremen and harbor workers was

substantially eliminated by the Fifth Circuit in Pizzitolo v.

Electro-Coal Transfer Corp.*®

The area of land-based maritime workers in and

around the harbor and in the shipyard, which is the

battleground in both Pizzitolo and Gizoni, has generated the

most confusion in Jones Act seaman status decisions. Under

the Fifth Circuit test, confusion resulted because the first two

35. 812 F.2d 977 (5th Cir. 1987). cert denied, 108 S.Ct. 1013

(1988) | hereinafter “Pizzitolo”}.

16

prongs of the Robison seaman status test: “permanent

a and “substantial work on board a vessel“ are

alternative; and hence, ostensibly, all longshoremen and

harbor workers satisfy the Robison seaman status test,

because they perform:

A substantial portion of their work on a vessel};

and,

Their duties contribute to the function or

mission of the vessel or its operation and

welfare in maintenance during movement or

anchorage for future trips.

The application of the Robison seaman status test to a

land-based harbor worker confers seaman status on every

longshoreman who performs substantial work on vessels.

The confusion generated by this over-expansive definition

applied by jurors not versed in the distinction between

longshoremen and seamen, further expanded seaman status

to cover just about any worker injured on a vessel (or floating

structure) and encouraged appellate resolution of every

seaman status determination.

17

In order to include all members of the crew of the

vessel, the courts had gradually expanded the traditional

navigational-function test in its application. In the Fifth

Circuit, Judge Wisdom crafted the Robison test for Jones Act

seaman status in Offshore Co. v. Robison,®® under which

Jones Act seaman status was no longer limited to members of

the crew of the vessel or the “ship’s company,” because a more

or less permanent assignment was no longer required for

crew member status. A worker now satisfied the vessel-

attachment requirement by simply performing "a substantial

part of his work on the vessel.” Jd. at 779.

In 1986, some uncertainties were reduced in Barrett v.

Chevron U.S.A.,°7 when the seaman status test for

amphibious oil field workers who claim their seaman status

under the “substantial work” prong of the Robison test was

required t» be "in the context of his entire employment with

his current employer.” Additionally, those workers who did

not perform “traditional seaman’s duties” must have

36 266 F.2d 769, 779 (5th Cir. 1959)

37 781 F 2d 1067 (5th Cir 1986) (en banc)

18

performed their duties on a “fleet of vessels.”** Even with

this restriction on the Robison test, traditional longshoremen

and land-based ship repairmen and harbor workers such as

Gizoni, Wenzel, Simko, Johnson and Pizzitolo satisfied the

Robison/Barrett test wherever they worked on an identifiable

group of vessels.

Barrett did not soive the confusion surrounding

workers, land-based workers or harbor workers, who

performed their duties on and about vessels which form a

fleet. However, Pizzitolo has since solved that problem

within the Fifth Circuit.

Pizzitolo

In 1987, Judge Davis (who authored the majority

opinion in Barrett), substantially eliminated the confusion

generated by application of the Robison seaman status test to

Dian: 39

longshoremen and harbor workers in Pizzitolo.

38. 781 F.2dat 1074.

39. 812 F.2d 977 ‘5th Cir. 1987), cert. denied, 108 S.Ct. 1013

(1988).

19

Pizzitolo was employed as an electrician by

Electro-Coal, the owner and operator of a coal terminal and

dock on the Mississippi River. Electro-Coal routinely

transfers coal from vessel to vessel and vessel to shoreside

storage areas. Pizzitolo worked a standard forty-hour work

week and arrived for work each morning at the shore-based

electrical shop where he received assignments from a

foreman. Although 75% of his work time was spent

maintaining and repairing shore-based machinery and 25%

was spent repairing electrical equipment on the vessels

owned by Electro-Coal, when injured, he was repairing one of

the conveyors used to load and unload the vessel when he fel]

into the river.

Pizzitolo filed suit against his employer under the

Jones Act and General Maritime Law, and the issue of Jones

Act seaman status was submitted to the jury which found

seaman status. The district judge disagreed with the jury’s

finding that Pizzitolo was a seaman and granted a judgment

notwithstanding the verdict on the issue of seaman status.

20

The Fifth Circuit Pizzitolo opinion, like this Court’s

decision in Wilander, rests on the chronology of statutory

development under the Jones Act passed in 1920 and the

LHWCA, passed in 1927, to eliminate Jones Act benefits to

land-based maritime workers and harbor workers, and to

substitute a compensation scheme for those workers. The

Pizzitolo decision rests upon the Congressional intent in

passing the LHWCA in 1927, following the passage of the

Jones Act in 1920, and reiterates that:

The 1927 LHWCA, in effect, amended the

Jones Act to make Jones Act benefits available

only to maritime workers not covered by the

LHWCA. Harbor workers engaged in

occupations such as longshoring, shipbuilding

and ship repairing, who were injured on

navigable water, were the intended

beneficiaries of the 1927 Act. The LHWCA as

amended in 1972 expressly covered workmen

engaged in these occupations. In 1972,

coverage of these workmen’s activities was

extended beyond navigable water to cover their

injuries on adjacent landbased work locations.

Given the explicit coverage of workmen

engaged in the enumerated occupations, we

reject the notion that Congress could have

intended to exclude them from the benefits of

the LHWCA as members of the crew of a vessel.

In sum, we hold that because longshoremen,

shipbuilders and ship repairers are engaged in

occupations enumerated in the LHWCA, they

are unqualifiedly covered by that Act if they

21

meet the Act’s situs requirements; coverage of

these workmen by the LHWCA renders them

ineligible for consideration as seamen vr

members of the crew of a vessel entitled to

claim the benefits of the Jones Act.

The only work Pizzitolo performed aboard

vessels was electrical repair work. Even if he

spent a substantial portion of his work time

aboard a recognized fleet of vessels performing

electrical repairs, for reasons stated above he is

covered by the LHWCA and cannot qualify asa

seaman within the meaning of the Jones Act.”

Thus, wherever the worker is within an occupation

category expressly enumerated in § 902(3) of the LHWCA, he

is unqualifiedly covered by the LHWCA if he meets the

LHWCA situs requirement [that is, if he was injured on

navigable waters or an adjoining area under § 903(a)], and

summary judgment dismissing a claim for Jones Act seaman

status is appropriate. Where the worker is in an occupation

specifically enumerated in the LHWCA, the Robison seaman

Status test is legally irrelevant.

That is, if the plaintiff in a Jones Act suit is a harbor

worker, longshore worker, shipbuilder or ship repairer,

Pizzitolo deciares that he is no longer entitled to have his

40 Pizzitolo , 812 F 2d at 983

22

Jones Act claim considered under the Robison seaman status

test of “substantial portion of work aboard a fleet of vessels”

and “duties contribute to the function or mission of vessels.”

Under Pizzitolo, the question of status is analyzed by first

determining whether the worker is in one of the statutorily —

enumerated occupations, and then whether he meets the

situs requirement under 33 U.S.C. § 903(a). If both are

present, the Jones Act claim will be dismissed as a matter of

law without ever reaching the Robison seaman status test.

In the Circuits which had followed the now defunct

navigational-function test, confusion still reigned in seaman

status cases involving land-based or harbor-based maritime

workers because those workers frequently performed some

maneuvering functions in connection with vessels or floating

structures. *!

41. See, e.g., Wenzel v. Seaward Marine Services, Inc., 709 F.2d

1326, 1327 (9th Cir. 1983) (Diver/tender engaged in

underwater ship repairs may have operated a SCAMP, a

submerged cleaning and maintenance platform); Searcy v.

E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir. 1982)

(Nightwatchman at sand and gravel business on the bank of

the Ohio River filled gas pumps and placed lanterns on

moored barges).

23

For example, Gizoni and Wenzel were both ship

repairmen, an occupation enumerated in the LHWCA, and

were both injured on navigable water. In the Circuits which

followed the navigational function test, both Gizoni and

Wenzel may have been found to be seamen. However, under

Pizzitolo, both Wenzel and Gizoni meet the LHWCA situs

requirement, are covered by the LHWCA, and are ineligible

for consideration of seaman status under the Jones Act.*? In

other words, before the Ninth Circuit decision in this case,

the Fifth Circuit’s Pizzitolo rule had resolved the confusion

which had provoked these concerns created by applying

seaman status tests to workers like Wenzel and Gizoni. As of

1987, the employee and work situation presented in this case

no longer created a problem within the Fifth Circuit, and

summary judgment denial of Jones Act status was proper.

V. Seaman Status Should Often be Determined

by Summary Judgment and by Di

~ hey g n y Directed

The indiscriminate application of seaman status tests

by jurors to workers who are engaged in those specific

42 Pizzitolo, 812 F 2d at 984

24

occupations enumerated in § 902(3) of the LHWCA generates

an over-expansive class of Jones Act seamen which includes

many land-based ship repairmen, traditional longshoremen,

and harbor workers whose only work on vessels is in port.

Within the Fifth Circuit, the consistent practice prior to

Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir. 1980),

of submitting every marginal status issue to the jury panel,

served to increase confusion in the Jones Act arena, until its

zenith when two Jones Act cases decided on substantially

identical facts yielded contradictory panel results on seaman

status. See Ardoin v. J. Ray McDermott & Co., 641 F.2d 277,

282 (5th Cir. 1981).

In Wilander, this Court characterized the question of

seaman status as a mixed question of law and fact.*

Wilander declared that “{iJt is for the court to define the

statutory standard. ‘Member of a crew’ and ‘seaman’ are

4

statutory terms; their interpretation is a question of law.”*

In cases where the underlying facts are established, and the

43. Wilander, at 818. See Holland v. Allied Structural Stee!

Corp., 539 F.2d 476 (5th Cir. 1976); Keener v. Transworld

Drilling Co., 468 F.2d 729 (5th Cir. 1972).

44. Wilander, at 818.

25

rule of law is undisputed, the only issue is whether the facts

meet the statutory standard. The Pizzitolo rule as a

threshold status issue, can provide an appropriate statutory

standard sufficient to support dismissal on summary

judgment under Federal Rule of Civil Procedure 56 or its

state counterpoint in cases involving workers engaged in the

occupations enumerated in the Longshore Act, 33 U.S.C.

§ 902/3).

Federal Rule of Civil Procedure 56(c) provides that

summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

“admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Substantive law identifies which facts are material to

the determinative law for purposes of summary judgment, as

only disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry

of summary judgment; factual disputes that are irrelevant or

unnecessary will not be counted. Anderson v. Liberty Lobby, —

26

Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Furthermore, Rule 56 must be construed with due regard not

only for the rights of persons asserting claims and defenses

that are adequately based in fact to have those claims and

defenses tried to a jury but also for the rights of persons

opposing such claims and defenses to demonstrate, in the

manner provided by the Rule prior to trial, that the claims

and defenses have no factual basis. Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Given the established legal framework surrounding

Jones Act seaman status enunciated in Wilander and

Pizzitolo, the factual disputes which are material to the

seaman status issue have been significantly reduced, and in

many cases, such as this one, the factual disputes are not

material to the determining legal issues and seaman status

can often be decided as a matter of law either on summary

judgment or directed verdict.*

45 See Tullos v. Resource Drilling, Inc., 750 F.2d 380 (5th Cir

1985): Bernard v. Binnings Construction Co., Inc., 741 F.2d

(5th Cir. 1984).

27

Proposed Seaman Status Test

In order to assist the trial court in determining whether

or not such claimants are entitled to a jury trial on their

alleged Jones Act claims, in answering the question accepted

for review in this case, this Court should clearly enunciate a

seaman status test. When the Court formulates such a status

test, the focus should remain on the language and intent

underlying the LHWCA, as in Wilander, and should

encompass the entire crew of a vessel hut exclude workers

who are not part of that ship’s regular company.

The simplest and most reliable seaman status test is to

require that the worker be more or less permanently assigned

to a vessel or a fleet of vessels in navigation and perform the

work of such vessel or vessels.“* Such a seaman status test,

after an initial threshold application of the Pizzitolo rule, to

eliminate land-based maritime workers and harbor workers,

would create an appropriate class of Jones Act seamen

consistent with the statutory interface between the Jones Act

46. See Wilander, 111 S.Ct. at 817. Such a seaman status

formulation was denominated as the “real test” by Judge

Skelly Wright in Perez v. Marine Transport Li

F Supp. 853 (E.D.La. 1958), chines, 160

28

and the LHWCA. This test would eliminate the confusion

surrounding land-based workers and would comply with

Congressional intent to restrict Jones Act coverage to

47

masters and members of the crew of a vessel.

47 LHWCA, 33 U SC. at § 902(3)(G) (1988).

29

CONCLUSION

The decision of the Ninth Circuit should be reversed

and this Court should adopt the Pizzitolo rule as a threshold

seaman status test to eliminate land-based maritime workers

and harbor workers. Such a rule best conforms to the express

statutory language and the Congressional intent underlying

the Jones Act and the LHWCA.

Respectfully submitted,

RICE, FOWLER, KINGSMILL,

VANCE, FLINT & BOOTH

WINSTON E. RICE

GEORGE J. FOWLER, III

EILEEN R. MADRID [Counsel of Record|

650 F oydras Street, Suite 2600

New Orleans, Louisiana 70130

Telephone: (504) 523-2600

FORREST BOOTH

KURT L. MICKLOW

EDWARD M. BULL, III

One Embarcadero Center, Suite 3550

San Francisco, California 94411

Telephone: (415) 399-9191

ny Chin HL Madu

EILEEN R. MADR wx)

Attorneys for: Global Marine, Inc.,

Halliburton Services, Ingram Industries,

Inc., Quality Shipyards, Inc., Reading &

Bates Corporation, Tidewater, Inc. and

Zapata Gulf Marine Corporation