# Opposition Brief — Yoash v. McLean Contracting Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1117

## Text

ee

ol Supreme Court, us. |
eT FILED
No. 90-602

JOSEPH F. SPANIOL, JR.
CLERK

In THE ti 3

Supreme Court of the United States

OCTOBER TERM, 1990

PAUL YOASH AND MARK CASSON,

Petitioners,

McLEAN CONTRACTING COMPANY, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH DISTRICT

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

Thomas G. Young, III

(Andrew M. Battista, on Brief)
Suite 707 Susquehanna Building
29 West Susquehanna Avenue
Baltimore, Maryland 21204
(301) 583-2414

Attorney for Respondent

ae

QUESTION PRESENTED FOR REVIEW

Whether the Court ought to grant certiorari
in a case in which the conflict among the Circuits over
the proper test to be applied in determining seaman

status under the Jones Act would not affect the

outcome of this litigation and would be the same
under any of the tests, and which would entangle the

Court in factual issues.

LIST OF AFFILIATED CORPORATIONS

The Respondent is affiiated with no other

corporations, except wholly-owned subsidiaries.

nT

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

LIST OF AFFILIATED CORPORATIONS i

TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE 1
SUMMARY OF ARGUMENT 1
ARGUMENT: 2
A. INTRODUCTION 2
B. JONES ACT CASES HAVE 3

ENTANGLED THE COURT IN
FACTUAL ISSUES

C. THE ISSUES NEED FURTHER 7
DEVELOPMENT BY THE COURTS
OF APPEAL

D. THE CASE DOES NOT 9
PROPERLY FRAME THE ISSUES

: Circuits emphasizing 11
aiding the general
purpose of the vessel.

2

CONCLUSION

a. First Circuit

b. Fifth Circuit

Cc. Eighth Circuit

d. Eleventh Circuit
Circuits with a "primarily

in aid of navigation" or
serving the “transportation

function" of the vessel test.

a. Second Circuit
b. Third Circuit

c. Fourth Circuit
d. Sixth Circuit

e. Seventh Circuit
f. Ninth Circuit

There is no conflict or
result in this case.

A decision of this Court on

the merits would not be
outcome determinative.

11

12

13

13

13

14

15

15

16

18

18

19

24

27

TABLE OF AUTHORITIE

Cases:

Barrett v. Chevron, U.S.A.. Inc. 8, 12
781 F.2d 1067 (5th Cir. 1986)

Bennett v. Perini Corporation 12
510 F.2d 114 (Ist Cir. 1975)

Bernard v. Binnings Construction 22, 24
Co., Inc., 824 (5th Cir. 1984)

Braen v. Pfeifer Oil Transportation, 5
Co., Inc., 361 U.S. 129 (1959)

Brown v. McKinnon Bridge Co., Inc. 17, 21
732 F.Supp. 1479 (E.D.Tenn.1989)

Bullis v. Twentieth Century-Fox 19
Film Corp., 474 F.2d 392 (Sth Cir.

1973)

Butler v. Whiteman §
356 U.S. 271 (1958)

Daniel v. Ergon, inc. 22, 24
892 F.2d 403 (5th Cir. 1990)

Desper v. Starved Rock Ferry Co. 5
342 U.S. 187 (1952)

iv

General Talking Pictures Corp-
oration v. Western Electric Co.

304 U.S. 175 (1938)

Gizoni_ v. Southwest Marine, Inc.
909 F.2d 385 (9th Cir. 1990)

Griffith v. Wheeling Pittsburgh
Steel Corp., 521 F.2d 31 (3rd Cir.
1975), cert. denied, 423 U.S. 1054
(1976)

Grimes v. Raymond Concrete Pile
Company, 356 U.S. 252 (1958)

Guidry v. South Louisiana Con-
tractors, Inc., 614 F.2d 447
(5th Cir. 1980)

Harney v. William _M. Moore

Building Corp., 359 F.2d 649
(2nd Cir. 1966)

Hurst v. Pilin tructures, Inc.
896 F.2d 504 (11th Cir. 1990)

International Oilfield Divers, Inc.
v. Pickle, 479 U.S. 1059 (1987)

Johnson v. John F. Beasley

Construction Co., 742 F.2d 1054,
(7th Cir. 1984), cert. denied,

469 U.S. 1211 (1985)

19, 21

13

14

13, 23

4, 8, 10

8, 18, 21

Klarman v. Santini 14
503 F.2d 29 (2nd Cir. 1974)

Layne & Bowler Corporation v. 26

Western Well works, Inc.
261 U.S. 387 (1923)

Lormand v. Aries Marine Corp. 3
484 U.S. 1031 (1988)

Lormand v. Superior Oil Co. 12
845 F.2d 536 (5th Cir. 1987)
cert. denied, 484 U.S. 1031 (1988)

Mahramas v. American Export 14
Isbrandtsen Lines, Inc.
475 F.2d 165 (2nd Cir. 1973)

McAllister v. United States 6, 27
348 U.S. 19 (1954)

McSweeney v. M.J. Rudolph Corp. 15, 20
575 F.Supp. 746 (E.D.N.Y. 1983)

Miller v. Patton-Tully 13

Transportation Co., Inc.,
851 F.2d 202 (8th Cir. 1988)

Offshore Company v. Robison 11, 12, 13, 17,
266 F.2d 769 (Sth Cir. 1959) 21

Peterson v. Chesapeake & Ohio Ry. 17
Co., 784 F.2d 732 (6th Cir. 1986)

vi

Powers v. Bethlehem Steel Corp. 24
477 F.2d 643 (ist Cir. 1973)

cert. denied, 414 U.S. 856 (1973)

Rice v. Sioux City Cemetery 6, 25
349 U.S. 70 (1955)

Searcy v. E.T. Slider, Inc. 16, 17
679 F.2d 614 (6th Cir. 1982)

Simko v. C&C Marine Maintenance 15, 20
Co., 594 F.2d 960 (3rd Cir. 1979)
cert.denied, 444 U.S. 833 (1979)

Slatton v. Martin K. Eby Construc- 13
tion Co., Inc., 506 F.2d 505 (8th

Cir. 1974) cert.denied, 421 U.S.

931 (1975)

South Chicago Coal and Dock Co. 5
v. Bassett, 309 U.S. 251 (1940)

Stafford v. Perini Corporation 12
475 F.2d 507 (1st Cir. 1973)

State of Maryland v. Baltimore 9
Radio Show, Inc., 338 u.S. 912
(1950)

Stephenson v. McLean Contracting 4, 16
Co., Inc., 863 F.2d 340 (4th Cir.

1988) cert.denied, 109 S.Ct. 2110
(1989)

vii

anaes titia aaa ie

Yoash v. McLean Contracting Co., 10, 16, 24

Inc., 907 F.2d 1481 (4th Cir.
1990)

Statutes and Court Rules:

Jones Act, 46 U.S.C. 5 688 1,2, 3, 4, 5, 6,

(set out in full, Petition, p.2) 9, 10, 12, 14,
16, 19, 22, 23,
24

Supreme Court Rule 10 2

viii

No. 90-602

In THE
Supreme Court of the United States

OCTOBER TERM, 1990

PAUL YOASH AND MARK CASSON,

Petitioners,

McLEAN CONTRACTING COMPANY, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH DISTRICT

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

aT

ATEM F TH E

Respondent accepts Petitioner’s Statement of

the Case.

SUMMARY OF ARGUMENT
Jones Act cases require minute inquiry into the
particular facts of each case. In addition, the Circuit
Courts have developed tests for Jones Act searnan status
which are responsive to local conditions. Lastly, an
examination of the facts of this case under the tests
developed in the various Circuits, demonstrate that the
outcome of this case would, in all likelinood, be the same

under any of the tests of seaman status.
Therefore, the Court ought to decline to grant

the Petition for long-standing policy considerations.

ARGUMENT

A. INTR TION

The sole question presented by Petitioner
as being of sufficient importance for the granting of a
writ of certiorari by this Court in this case has to do
with the proper test to be applied in assessing the nature
of the job duties of a claimant in determining whether
the applicable portion of the Jones Act test for seaman
status has been met. It is by now universally recognized
that there is, indeed, a conflict among the Courts of
Appeal on this issue.

Therefore, Petitioners appear to invoke the
Court’s guideline contained in Supreme Court Rule 10.1(a)

which states that the Court may exercise its discretion

to grant a writ:
(a) When a United States court of appeals
has rendered a decision in conflict with
the decision of another United States court
of appeals on the same matter ....
The discussion which follows will set forth Respondent’s

reasons for arguing that the Petition ought not to be

granted.

B. JONES ACT CASES HAVE ENTANGLED
THE COURT IN FACTUAL ISSUES.

Justice White, in dissenting from denials of

certiorari in Jones Act cases, has discerned that the
Fifth Circuit has lead in adopting one approach, and
that the Seventh and Third Circuits have adopted another.

Lormand v. Aries Marine Corp., 484 U.S. 1031 (1988 -

dissenting opinion joined in by Justice Blackmun);

International Oilfield Divers, Inc. v. Pickle, 479 U.S. 1059

—- eee #

(1987 - dissenting opinion joined in by The Chief
Justice). In the case companion in all respects to this

case, Stephenson v. McLean Contracting Co., Inc., 863
F.2d 340 (4th Cir. 1988), cert. denied 109 S.Ct. 2110

(1989), Justice White would have granted certiorari, although
no reasons were given.

Clearly there is sentiment among certain of
the Justices that, in a proper case, this Court should
review the Jones Act tests for seaman status adopted
by the courts of appeal, and formulate a test applicable
in all cases, if that is possible.

One problem with Jones Act cases, however,
is their intensely factual orientation.

The many cases turning upon the question
of whether an individual was a "seaman"

demonstrate that the matter depends largely
on the facts of the particular case ....

Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190
(1952).

One need only reflect upon the disagreements
among the Justices in previous cases, as expressed
in the majority and dissenting opinions, to note that the
resolution of Jones Act cases involves careful scrutiny
of the facts peculiar to each claim of seaman status.

See, eg., Braen v. Pfeifer Oil Transportation Co., 361
U.S. 129 (1959); Butler v. Whiteman, 356 U.S. 271 (1958);

Grimes v. Raymond Concrete Pile Company, 356 U.S.

252 (1958). Even where the Justices are in agreement,

cases such as South Chicago Coal and Dock Co. v.

Bassett, 309 U.S. 251 (1940), demonstrate beyond argument

the entanglement of appellate courts, including this Court,
in minute inquiry into the facts determining seaman status
peculiar to a particular case.

This is to suggest, therefore, that such cases
may bring this Court perilously close to a violation of
its own policy of avoiding decisions which benefit only

a particular litigant. Rice v. Sioux City Cemetery, 349

U.S. 70, 74 (1955). Stated differently, this Court may
find itself in the business of reviewing Jones Act cases
solely for the purpose of deciding whether the evidence
or inferences drawn from it justified the action taken
below, which is ordinarily not a reason for granting a

writ of certiorari, See, General Talking Pictures

Corporation v. Western Electric Co., 304 U.S. 175, 178

(1938); McAllister v. United States, 348 U.S. 19, 23-5

(1954 - dissent by Justice Frankfurter).

C. THE ISSUES NEED FURTHER DEVELOPMENT
BY THE COURTS OF APPEAL.

In addition to the previous argument, there
is another also based on the discretionary aspect of
certiorari. !t is doubtful that this Court can create a rule
or test that will be equally satisfactory in each case, or
which will be equally responsive to the differing cir-
cumstances prevailing among the Circuits. For example,
it is common knowledge that the Fifth Circuit formulated
its own expansive test of seaman status in order to provide
a much-needed remedy to classes of offshore drilling
platform workers who were, at the time, without recourse

under any state or federal compensation scheme. See

concurring opinion of Judge Gee in Barrett v. Chevron,
U.S.A., Inc., 781 F.2d 1067, 1076 (5th Cir. 1986).
However, in Circuits where such considerations
do not pertain, a different test has evolved which is more
in keeping with a particular Circuit’s own view of the
remedy which ought to be provided. See, eg., Johnson

v. John F. Beasley Construction Company, 742 F.2d

1054, 1060-62 (7th Cir. 1984), cert. denied, 469 U.S.

1211 (1985). In fact, when the circumstances peculiar
to the Fifth Circuit were altered by the passage of remedial
legislation, certain members of that court urged the reversal
of previous authority and the adoption of the Seventh

Circuit test. Barrett v. Chevron, U.S.A., Inc., supra, 781

F.2d at 1073, 1076; See, International Oilfield Divers,

Inc. v. Pickle, supra.

The various Circuits have responded to local
need in developing their respective tests and it may well
be that as time progress and local conditions ameliorate,
the courts of appeal will develop a test that all can agree
upon. As stated by Justice Frankfurter in his opinion

denying the granting of a writ in State of Maryland v.

Baltimore Radio Show, Inc., 338 U.S. 912, 918 (1950):

It may be desirable to have different aspects
of an issue further illumined by the lower courts.
Wise adjudication has its own time for ripening.

D. THIS CASE DOES NOT PROPERLY FRAME
THE ISSUES.

Justice White, as noted earlier, has observed
two main lines of approach in stating the Jones Acct test:
The Fifth Circuit ... has taken the position that

to be a seaman, a person need not assist in
the transportation function of the vessel. ... Other

Courts of appeal, particularly the Third and Seventh
Circuits, have rejected this view and require that
before a plaintiff can sue under the Jones Act,
he must be employed in such a way as to assist
in the navigational function of a vessel.

International Oilfield Divers, Inc. v. Pickle, supra, (dissent -

Citations omitted).

This same distinction was also noted and
discussed iri the opinion of the Court below where it
is made clear that the Fourth Circuit stands firmly with
the Seventh and Third Circuits, and opposed to the Fifth
Circuit, in its formulation of the Jones Act test of Seaman
Status, particularly in that portion of the test focussing

on the job duties of the claimant. Yoash v. McLean

Contracting Co., Inc., supra, 907 F.2d at 1485-6. (Petition,

A-17, 18)

However, despite the clear differences among

10

the Circuits in the statement of the test, the facts of this
case, as will be argued below, make it clear that there
would have been no difference in result had the case
been decided under the Fifth Circuit test, and the Circuits
which follow it, or, as it was, under the Third and Seventh
Circuit tests followed by the Fourth and other Circuits,
and therefore, this case does not permit the issues to
be adequately framed.

A brief summary of the tests in the Circuits
to have considered the issue is helpful, and follows.

1. Circuits emphasizing aiding the general purpose
of the vessel.

a. First Circuit:

The First Circuit has adopted the test formulated

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

il

|

7

Cir. 1959) without apparent alteration. See, Stafford

v. Perini Corporation, 475 F.2d 507, 510 (1st Cir. 1973);

accord, Bennett v. Perini Corporation, 510 F.2d 114 (1st
Cir. 1975).

b. Fifth Circuit:

The test for Jones Act status in the Fifth Circuit

as originally formulated in Offshore Company v. Robison,

supra, has been recently reaffirmed in Barrett v. Chevron

U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986), and later

in Lormand v. Superior Oil Co., 845 F.2d 536, 539 (5th

Cir. 1987), cert. denied 484 U.S. 1031 (1988), wherein

the test is set out as:

A worker claiming seaman status must establish
(1) that he is assigned permanently to a vessel
in navigation or performs a substantial part of
his work on a vessel or fleet of vessels and (2)
that his work contributes to the function of the
vessel or to the accomplishment of its mission.

12

(citations and footnote omitted)
C. Eighth Circuit:
The Eighth Circuit has adopted the Offshore

v. Robison test. Slatton v. Martin K. Eby Construction

Co., Inc., 506 F.2d 505, 510 (8th Cir. 1974), cert. denied,

421 U.S. 931 (1975); accord, Miller v. Patton-Tully

Transportation Co., Inc., 851 F.2d 202, 204 (8th Cir. 1988).

d. Eleventh Circuit:

In Hurst v. Pilings & €tructures, Inc., 896 F.2d

504, 505 (11th Cir. 1990) the Eleventh Circuit has adopted

a variant of the Fifth Circuit test set out in Guidry v. South

Louisiana Contractors, Iric., 614 F.2d 447 (5th Cir. 1980).

2. Circuits with a “primarily in aid of navigation" or
serving the "transportation function" of the vessel test.

13

eaten

a. Second Circuit:

The test in the Second Circuit is not as clear
as in other Circuits, but it is placed under this heading
due to the discussion in Klarman v. Santini, 503 F.2d
29, 33 (2nd Cir. 1974), concerning the “aid to navigation”
test:

... fequirements for a Jones Act seaman are
that “the vessel must be in navigation, there must
be a more or less permanent connection with
the ship, and the worker must be aboard naturally
and primarily as an aid to navigation”. Harney
v. William M. Moore Building Corporation, 359
F.2d 649, 654 (2nd Cir. 1966). While these
requirements have not been interpreted strictly,
they are not meaningless. ... Although “aid to
navigation” has been read “very broadly", Harney,
supra, 359 F.2d at 654, it is nevertheless required
that an alleged seaman "perform services upon
ships and [be] exposed to the unique hazards
of work upon the sea”. Mahramas v. American

Export Isbrantsen Lines, Inc., 475 F.2d 165, 170
(2nd Cir. 1973).

14

See, also, McSweeney v. M.J. Rudolph Corp., 575 F.Supp.
746, 748 (E.D.N.Y. 1983).

b. Third Cir
The Third Circuit has a very strong “aid to
navigation” test:

This Court has previously held that among the
"decisive elements necessary of proof in
determining who is ‘a member of a crew’ within
the meaning of the Jones Act" is a require-
ment that the worker be aboard [the ship]
primarily to aid in navigation.” Griffith v.

Wheeling Pittsburgh Steel Corp., 521 F.2d
31, 36 (3rd Cir. 1975), cert. denied, 423 U.S.
1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976).

Simko v. C&C Marine Maintenance Co., 594 F.2d 960
(3rd Cir. 1979), cert. denied, 444 U.S. 833 (1979).

C. Fourth Circuit:

The Court below has stated the following as

15

being that portion of the test for the Fourth Circuit which
focusses on the job duties of the claimant:

The second prong of the test for determining
seaman status under the Jones Act... is whether
a worker’s duties, when considered in the
aggregate, serve naturally and primarily as an
aid to navigation. In making the “aid to nav-
igation’ determination, a consideration of whether
the duties primarily contribute, either directly
or indirectly, to the transportation function of
the vessel is appropriate.

Yoash v. McLean Contracting Co., Inc., supra, 907 F.2d
at 1486 (Petition, A-18); accord, Stephenson v. McLean

Contracting Co., Inc., 863 F.2d 340 (4th Cir. 1988), cert.

denied, 109 S.Ct. 2110 (1989).

d. ixth Circuit:
Although the Sixth Circuit has clearly included
a navigational function requirement, it apparently has

received an expansive reading. In Searcy v. E.T. Slider,

Inc., 679 F.2d 614, 616 (6th Cir. 1982), the test is stated:

16

... In determining whether a particular employee
is a “seaman” the following test shall be applied;
1) is the vessel in navigation, 2) does the employee
have amore or less permanent connection with
the vessel, and 3) was the employee on board
the vessel primarily in aid of navigation?

Accord, Petersen v. Chesapeake & Ohio Ry. Co., 784

F.2d 732 (6th Cir. 1986). See also, Brown v. McKinnon

Bridge Co., Inc., 732 F.Supp. 1479 (E.D.Tenn.1989).

Since, however, the Sixth Circuit cases cite
and rely upon cases from the Fourth, Fifth and Seventh
circuits, and the Searcy case, supra, 679 F.2d at 616,
finds no real distinction between its test and the Fifth

Circuit’s test in Offshore Company v. Robison, supra,

it is hard to tell exactly where the Sixth Circuit lies on
the issue, but its inclusion under this heading is made
because of the express "primarily in aid of navigation"

language.

17

e. Seventh Circuit:

The Seventh Circuit test was developed in

Johnson v. John F. Beasley Construction Co., 742 F.2d
1054, 1063 (7th Cir. 1984), cert. denied, 469 U.S. 1211

(1985) as stating that there is evidence of seaman status
where at the time of the injury:

(1) the person injured had a more or less

permanent connection with a vessel in navigation,
and (2) the person injured made a significant
contribution to the maintenance, operation, or
welfare of the transportation function of the vessel.

f. Ninth Circuit:

The Ninth Circuit has adopted a test including
a navigational duty standard:

Under the Jones Act, status as a "seaman"
depends on three factors: (1) the vessel on which
the Claimant was employed must be in navigation;
(2) the claimant must have a more or less
permanent connection with the vessel; and (3)
the claimant must be aboard primarily in aid
in navigation.

18

Gizoni v. Southwest Marine, Inc., 909 F.2d 385, 387 (Sth

Cir. 1990), citing Bullis v. Twentieth Century-Fox Film

Corp., 474 F.2d 392, 393 (9th Cir. 1973).

3. There is no conflict in result in this case.

As noted earlier, the facts are extremely
important in each Jones Act case. The factual recitation
in the opinion below is lengthy as to each Petitioner,
907 F.2d 1482-3, (Petition, A-3-7) and it is unnecessary
to set forth these facts again. The Circuit Court’s summary
of its conclusions, however, is helpful:

Next, appellants claim that their duties, when
considered as a whole, establish that they served
as an aid to navigation in the broadest sense.
They do not contend that their duties primarily
contributed to the transportation function of the
vessel. It is clear that Yoash and Casson
were pile drivers whose primary purpose was
to aid in the building of a bridge, not in the

navigation of the vessel. Their duties, when

considered in the aggregate, were not to "serve
naturally and primarily as an aid to navigation"

19

... Those activities which did relate to the
transportation function of the CAPE FEAR were
offshoots of the pile driving work.
907 F.2d 1486-7 (citations omitted, Petition A-20).
Clearly, the result reached below would have
been the same in each of the Circuits with an aid to
navigation or transportation function of the vessel. See,
eg:

Second: McSweeney v. M.J. Rudolph

Corp., supra, 575 F.Supp. at
748.

Third: Simko v. C&C Marine Mainte-

nance Co., supra, 594 F.2d at
965

Sixth: Brown v. McKinnon Bridge Co..,
Inc., supra, 732 F.Supp. at
1484.

Seventh: Johnson v. John F. Beasley

Construction Co., supra, 742
F.2d at 1064.

Ninth: cf., Gizoni v. Southwest
Marine, Inc., supra, 909 F.2d

at 387 (factual analysis).

20

Merely because the petitioners cannot meet the aid
to navigation or transportation function test, and thus
are not seaman under the tests in six Circuits, is not
to assume that they thereby satisfy the status tests
in the remaining four Circuits to have adopted a test.
To so assume ignores the fact that the Fifth Circuit test,
adopted verbatim in the First, Eighth and Eleventh
Circuits, has other elements, among which is the necessity

for the claimant to be assigned to a "vessel". Offshore

Company v. Robison, supra, 266 F.2d at 779.

What constitutes a "vessel" for Jones Act
purposes under the Robison test has been the subject
of a number of decisions, the principals culled from which

recently have been set out in Daniel v. Ergon, Inc., 892

F.2d 403, 407 (5th Cir. 1990), as follows:
In numerous cases we have been called upon
to determine the existence of a vessel. From
these cases we have discerned three factors -

21

common to floating platforms that are not con-
sidered vessels:

(1) The structures involved were constructed and
used primarily as work platforms;

(2) they were moored or otherwise secured at
the time of the accident; and

(3) although they were capable of movement and
were sometimes moved across navigable waters
in the course of normal operations, any transportation
function they performed was merely incidental to
their primary purpose of serving as work platforms.

Accord, Bernard v. Binning Construction Co.., Inc., 741

F.2d 824 (5th Cir. 1984).

In applying this test, the Eleventh Circuit has held
a barge identical in basic design and purpose to the
crane barge in the present case, to be a work platform,
and not a vessel for Jones Act purposes, as a matter

of law. Hurst v. Pilings & Structures, supra, 896 F.2d

at 506-7. Of significance to the Hurst decision was that
the barge had no motive power of its own, and is towed

by a tow boat when it needs to change location. The

22

barge was equipped with "spuds", which are legs which
are lowered into the bed of the waterway to render it
immobile. The barge was used as a work platform,
with any transportation function being merely incidental
to its primary purpose. The barge carried its own small
boats and a crane to aid its function.

The barge involved in the present case appears

to be identical. See Yoash v. McLean Contracting Co.,

Inc., supra, 907 F.2d at 1483 (Petition, A-5).

The Court in Hurst held that the claimant was not
a Jones Act seaman because the floating platform to
which he was assigned was not a "vessel" as a matter
of law. See also, Daniel v.Ergon, inc., supra; Bernard

v. Binnings Construction Co., Inc., supra, Powers v.
Bethlehem Steel Corp., 477 F.2d 643 (Ist Cir. 1973),

cert. denied, 414 U.S. 856 (1973).

Albeit under a different "prong" of the test, there
is a very strong likelihood that the result reached by
the Fourth Circuit in the present case would be the same
under the test applied in the Fifth Circuit and the

Circuits which have adopted its test.

4. A decision of this Court on the merits would not
be Outcome Determinative.

Thus, the Court ought to exercise its discretion in
denying the present Petition, since a review of the facts
of this case shows that the outcome, in all likelinood,
would have been no different had this case been decided
under the test adopted by the Fifth Circuit and the courts
of appeal following its lead. Therefore, this case does
not present this Court with an opportunity to decide
a matter of contest among the Circuits, but only, should

the writ be granted, with a decision of an abstract issue,

albeit a fascinating and intellectually taxing one. This,
of course, would run counter to the Court's own announced
policy. See, eg, Rice v. Sioux City Cemetery, supra.
The facts of this case simply do not create that tension
between the various tests of seaman status which would
highlight the differences and permit the proper common
guiding principles to be perceived.

In Layne & Bowler Corporation v. Western Well Works,
Inc., 361 U.S. 387 (1923), a patent infringement case,

this Court had granted a petition for writ of certiorari
in order to resolve an apparent conflict among the Circuits.
Although the Court found in that case that the conflict
was more apparent than real, and dismissed the writ
accordingly, the language in Chief Justice Taft’s opinion
applies with some force in the present case, albeit the

conflict here is real and not imagined, because there

25

would be no likely conflict in outcome in this case:

... it is very important that we be consistent in
not granting the writ of certiorari except in cases
involving principles the settlement of which is of
importance to the public, as distinguished from
that of the parties, and in cases where there is a
real and embarrassing conflict of opinion and authority
between the Circuit Courts of Appeal.

261 U.S. at 393. See also Justice Frankfurter’s dissent

in McAllister v. United States, supra.

Because any decision of this Court is not likely to
be outcome determinative, the existing conflict among

the Circuits cannot be properly resolved.

26

Cc LUSION

For the foregoing reasons, Respondent respectfully
requests that the Petition for a Writ of Certiorari not be

granted.

Thomas G. Young, Ill

YOUNG & BATTISTA, P.A.

Suite 707 Susquehanna Building
29 West Susquehanna Avenue
Baltimore, Maryland 21204

(301) 583-2414

Counsel for Respondent

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0987%3A2. Public record. Not legal advice.