Opposition Brief — Campo v. Electro-Coal Transfer Corp.

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NOs. 90-722 « 90-956 "5 19

JOSE DOH SPANIOL, J

In the

Supreme Court of the United States

OCTOBER TERM, 1990

CLEA

CURTIS CAMPO, JR.

Plaintiff-Petitioner

versus

ELECTRO-COAL TRANSFER CORPORATION, INC.

Defendant-Respondent

NATIONAL UNION FIRE INSURANCE COMPANY

Intervenor-Petitioner

versus

CURTIS CAMPO, JR., Plaintiff-Petitioner, and

ELECTRO-COAL TRANSFER CORPORATION, INC.,

Defendant-Respondent

ON PETITIONS FOR WRITS OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT’S CONSOLIDATED BRIEF IN

OPPOSITION TO PETITIONS FOR CERTIORARI

GEORGE R. ALVEY, JR.*

EDITH BROWN CLEMENT

RICHARD D. BERTRAM

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

201 St. Charles Avenue

New Orleans, LA 70170

Telephone: (504) 582-8230

Attorneys for Respondent,

Electro-Coal Transfer Corporation

(*Counsel of Record)

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

i

QUESTIONS PRESENTED

Petitions No. 90-722 and 90-956 present the same ques-

tions arising from the same case. These questions are:

A. Whether the Circuit Court of Appeals for the

Fifth Circuit was correct in affirming the district court's

directed verdict in favor of Respondent on the issue of Peti-

tioner’s lack of seaman status for the purpose of asserting

a remedy under the Jones Act, 46 U.S.C. § 688, and finding

that Petitioner was engaged in ‘‘maritime employment”’ as

defined in Section 902(3) of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901 et seq.

B. Whether the Circuit Court of Appeals for the Fifth

Circuit correctly applied Supreme Court precedent, the

Jones Act, and the Longshore and Harbor Workers’ Com-

pensation Act in finding that Petitioner, a shore-based ter-

minal worker who assisted with the loading and unloading

of vessels, was not a Jones Act seaman, but rather a worker

covered under the Longshore and Harbor Workers’ Com-

pensation Act.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS ........ es ete

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

ARGUMENT

[.

If.

THE QUESTIONS PRESENTED DO

NOT MERIT REVIEW ..............---

THE COURTS BELOW CORRECTLY AP-

PLIED BOTH THE JONES ACT AND

THE LHWCA IN DETERMINING THAT

CAMPO IS COVERED UNDER THE

LIEWCA: .. 6 eee

A. CAMPO WAS NOT A JONES ACT

SEARAN ....0.0 2 eee

B. CAMPO WAS A SHORE-BASED TER-

MINAL WORKER COVERED BY THE

LAIWCA ...3. 33 eee

C. SUPREME COURT PRECEDENT.

CONCLUSION ......

APPENDIX:LISTING OF PARENT AND SUB-

SIDIARY COMPANIES IN

ACCORDANCE WITH SUPREME

COURT RULE 29.1

qr

12

A-1

ili

TABLE OF AUTHORITIES

CASES: Page

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

eee tN AL hae ot cm 6

Anderson v. Liberty Lobby, 477 U.S. 242 _. (1986) .. 6

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

er ean ee §

Chesapeake and Ohio Railway Company v.

Schwalb, 110 S.Ct. 381 (1989).............. .. .9-10

Desper v. Starved Rock Ferry Co., 342 U.S. 187

ye EL as Er Ipc uN eee i a 11

Director v. Perini North River Associates, 459 U.S.

Ys en. Fe ep ek ev de een eu, oes

Galloway v. United States, 319 U.S. 372 (1943)... «6

Grimes v. Raymond Concrete Pile Company, 356

ee 1]

Herb’s Welding v. Gray, 470 U.S. 414 (1985). 8,10

Improvement Co. v. Munson, 14 Wall. 442,

448 (1872)... So PAAR WS Serer en an pea ee

Landry v. Hunthnance Drilling Company, 889 F.2d

1469 (5th Cir. 1989)... Pipe naee years eee ae tT eae

Layne & Bowler Corp v. Western Well Works, Inc.,

CO ee ..6

Legros v. Panther Services Group, Inc., 874 F.2d

953 (5th Cir. 1989) | | | 11

iv

TABLE OF AUTHORITIES (continued)

CASES: Page

Norton v. Warner Co., 321 U.S. 565 (1944)........ 8,11

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

> a a he anne seca 5

P.C. Pfeiffer Company v. Ford, 444 U.S. 69 (1979) 8,10

Parklane Hosiery Company, Inc. v. Shore, 439 U.S.

Pe eA pace UM ie BRO SE yy ares eS 6

Pizzotolo v. Electro-Coal Transfer Corp., 812 F.2d

977 (5th Cir. 1987), cert denied, 108 S.Ct. 1013

Rl Ae ape at ak tel ede ai mutieti res. adat Aiea cs OY

Rice v. Sioux City Memorial Park Cemetery, 349

US. 70 Gee... es , 5

Senko v. La Crosse Dredging Corp., 352 U.S. 370

«aie Apa tee since relay aret eae. eae |

Swanson v. Marra Brothers, Inc., 328 U.S. 1

ee ttt, eon nae | a &

Victory Carriers, Inc. v. Law, 404 U.S. 202

(oe! Sees >. | 8

OTHER AUTHORITIES:

H.R. Rep. No. 92-1441, p.11 (1972) 8

Jones Act, 46 U.S.C. Sec. 688 . l

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. Sec. 901 et seq passim

Rule 10 of Supreme Court 4

]

STATEMENT OF THE CASE

Curtis Campo, Jr., Petitioner, brought suit for per-

sonal injuries against his employer, Electro-Coal Transfer

Corporation (‘‘Electro-Coal’’), under the Jones Act, 46

U.S.C. Sec. 688, and the general maritime law. After hear-

ing all of plaintiff's evidence on the issue of seaman status,

the United States District Court for the Eastern District of

Louisiana entered a directed verdict in favor of Electro-

Coal. Construing all evidence in favor of Petitioner, the

district court concluded that Petitioner was not a seaman

under the Jones Act and that Campo’s remedy against his

employer was under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. Sec. 901 et seg. (““LHWCA’)),

since the work Campo performed related to the loading and

unloading of vessels, the traditional function of a

longshoreman/harbor worker. Appendix at A-6.! This

determination was affirmed by the United States Court of

Appeals for the Fifth Circuit. Appendix at A-3 - A-4.

Petitioner, National Union Fire Insurance Company

(‘National Union’’), is the Longshore and Harbor Workers’

Compensation insurer of Electro-Coal. National Union filed

an Intervention in Campo’s suit seeking recoupment of

compensation and medical benefits received by Campo in

accordance with the LHWCA in the event it was deter-

mined that Campo was a seaman. National Union filed a

separate Petition for Certiorari adopting by reference the

arguments and authorities cited in Campo’s Petition for

Certiorari.

| Petitioners in No. 90-722 and 90-956 filed identical Appendices with

the same pagination. The opinions of the court of appeals and district

court are unpublished and are reproduced in both Appendices at A-] and

A-6 respectively, and citations to these opinions are in the form **Appen-

dix at A- -

2

The uncontested facts established that Campo was a

shore-based terminal worker who assisted in loading and

unloading bulk cargo at Electro-Coal’s terminal in Pla-

quemines Parish, Louisiana. Electro-Coal's facility is used

to transfer and store coal and other cargo. The terminal in

question consists of shore side buildings, a coal storage

area, and a dock. Electro-Coal routinely transfers coal from

vessel to vessel and between vessels and the shore-side

storage area. Barges loaded with coal and other cargo to be

discharged are routinely tied to the dock adjacent to the

terminal. The cargo is then loaded either onto other barges

or seagoing vessels, or stored in Electro-Coal’s terminal.

Cargo is loaded and unloaded by use of large electric

powered machines, various cranes, and a series of powered

conveyor belts.

Electro-Coal's terminal workers are divided into two

divisions, an operations division and a harbor boat divi-

sion. Campo was assigned to the operations division and

was classified as an operator trainee at the time of his acci-

dent. The operations division consists of shore-based dock

workers who are involved with the handling, loading and

unloading of cargo. Appendix at A-2. Campo’s primary

duties concerned the operation of the different types of

equipment used in the cargo transfer process. This equip-

ment is located on the dock and on land. To operate the

machinery Campo would sit in a cab, above the dock, and

pull various levers to move cargo onto conveyor belts or to

allow the cargo to be let out of the machines into the barge.

The harbor boat division at Electro-Coal consists of

a foreman, tug boat operators and deckhands who are per-

manently assigned to specific vessels. Campo was not

assigned to this division. The harbor boat division runs and

maintains Electro-Coal’s four harbor boats. No evidence

was presented suggesting that Campo was permanently

3

assigned to work aboard any of these vessels as a member

-of the crew. Appendix at A-11.

Like other marine terminals, thousands of barges

and vessels call annually at the Electro-Coal facility to

discharge or to load cargo. These cargo carrying vessels,

both river and ocean going, are owned and operated by

many different companies. None of the cargo carrying

vessels are owned by Electro-Coal, with the exception of a

single barge, which is used for maintenance and clean up

work.

In order to facilitate loading and unloading opera-

tions, Campo occasionally boarded barges, removed hatch

covers, pumped ballast, and caught and released lines.

Campo, however, admitted that these activities were for

the sole purpose of facilitating the loading and unloading of

cargo. Appendix at A-8. Campo spent most of his time

operating a continuous bucket loader, a machine located on

the dock and designed to remove cargo from barges. Ap-

pendix at A-3 - A-4.

Campo was injured when he fell into a barge, moored

at a dock, which he was aboard preparing it to take on

cargo. Appendix at A-3. A tug was positioned alongside the

barge. A line from the tug was used to open a hatch cover

on the barge. After the cover was opened, Campo detached

the line and gave it back to the tug’s deckhand. As the tug

moved away from the barge upon which Campo was stand-

ing, Campo somehow fell into the barge’s cargo hold. Ap-

pendix at A-3. There was no evidence or proof that Campo

was permanently assigned to the tug, or any other vessel,

as a crewmember nor did Campo perform a substantial

amount of his work on vessels. Appendix at A-11.

Campo brought suit against Electro-Coal under the

4

Jones Act, contending that he was a ‘“‘seaman.”’ Electro-

Coal defended contending, inter alia, that Campo, a shore-

based terminal worker assisting in the loading and

unloading of vessels, was not a Jones Act seaman, but was

covered by the LHWCA and engaged in ‘‘maritime employ-

ment”’ as defined in Section 902(3) of the LHWCA. The

district court directed a verdict in favor of Electro-Coal at

the close of Campo’s case. This determination was affirmed

by the Circuit Court of Appeals for the Fifth Circuit.

ARGUMENT

1. THE QUESTIONS PRESENTED DO NOT

MERIT REVIEW.

The questions raised by Petitioners do not merit

review nor do Petitioners articulate any ‘special and im-

portant reasons” required by Rule 10 of the Supreme Court

of the United States to support their argument that this

Court should exercise its discretionary power of review.

Rule 10 implies that there must be a substantial federal

question presented to warrant the granting of certiorari.

The questions presented by Petitioners relate solely to fac-

tual issues, and do not involve any issues of constitutional

law, federal statutory law, or federal maritime law. The

court of appeals’ decision is not in conflict with a decision

of this Court or of another federal circuit court of appeals,

nor has the court of appeals decided a federal question in

a way which conflicts with a state court of last resort.

There is no evidence that the court of appeals has “‘so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower

court’’ as to warrant an exercise of this Court's power of

supervision. In fact, as shown below, the decisions of the

iower courts are in full accord with the LHWCA, the Jones

Act, and the precedents of this Court.

5

Certiorari should not be granted ‘‘except in cases in-

volving principals the settlement of which is of importance

to the public, as distinguished from that of the parties,

and where ‘‘there is a real and embarrassing conflict of

opinion and authority between the circuit courts of ap-

peals."’ Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 79 (1955) (quoting Layne & Bowler Corp v.

Western Well Works, Inc., 261 U.S. 378, 393 (1923)). No

such reasons exist in this case. Petitioners are merely

dissatisfied with the results below as it affects them as

litigants and are attempting to reargue the case which Peti-

tioners lost below on undisputed facts. This Court has

stressed that it does not “sit for the benefit of particular

litigants.”’ Rice, 349 U.S. at 74.

Il. Th& COURTS BELOW CORRECTLY AP-

PLIED BOTH THE JONES ACT AND THE

LHWCA IN DETERMINING THAT CAMPO

IS COVERED UNDER THE LHWCA.

A. CAMPO WAS NOT A JONES ACT SEAMAN.

Under the Fifth Circuit's precedents of Offshore

Company v. Robison, 266 F.2d 769 (5th Cir. 1959), and Bar-

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

a maritime worker qualifies as a seaman if:

1. He was permanently assigned to a vessel or

performed a substantial part of his work on a

vessel or on an identifiable fleet of vessels ac-

ting together or under one control and;

tN

The work he performed contributed to the func-

tion of the vessel or the accomplishment of its

mission.

781 F.2d at 1074 - 76. The undisputed facts established

6

that Campo was not a crew member of any vessel, nor was

he assigned permanently to any vessel or fleet of vessels,

nor did he perform significant work on vessels. Appendix

at A-13 - A-14.

The requests for certiorari rest on the grounds that

in most cases the question of seaman status should be

determined by the jury. This completely undermines the

purpose of a directed verdict. In Jones Act cases ‘‘a mere

scintilla’’ of evidence is insufficient to present a question

for a jury and there must be a conflict in substantial

evidence to create a jury question. A directed verdict is ap-

propriate where there is a complete absence of probative

facts supporting plaintiff's position. See, e.g., Landry v.

Hunthnance Drilling Company, 889 F.2d 1469, 1470 (5th

Cir. 1989); Allen v. Seacoast Products, Inc., 623 F.2d 355

(5th Cir. 1980).

The right to a jury trial does not negate the authority

of the federal courts to direct a verdict or enter a judgment

notwithstanding the verdict for insufficiency of evidence.

Galloway v. United States, 319 U.S. 372, 389 (1943) (federal

courts have power to direct verdict for insufficiency of

evidence even though claimant has right to jury trial);

Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322,

333-35 (1979) (offensive use of collateral estoppel does not

violate defendant's right to trial by jury). Petitioners’

arguments ignore that it is proper to direct a verdict when,

under the governing law, ‘‘there can be but one reasonable

conclusion as to the verdict.’’ Anderson v. Liberty Lobby,

477 U.S. 242, 250-51 (1986). In Anderson, this Court noted

that ‘judges are not required to submit a question to the

jury. .. unless the evidence is of such a character that it

would warrant the jury finding a verdict in favor of that

party. 477 U.S. at 251 (quoting Improvement Co. v. Mun-

son, 14 Wall. 442, 448 (1872)). Campo put forth no evidence

7

from which a jury could infer that he was permanently

assigned to a vessel or fleet of vessels.

B. CAMPO WAS A SHORE-BASED TERMINAL

WORKER COVERED BY THE LHWCA.

All of the evidence presented indicated that Campo

was a shore-based harbor worker who was involved with

the loading and unloading of vessels, classic stevedoring

work covered by the LHWCA. Appendix at A-2-A-4.

Campo was engaged in ‘“‘maritime employment” on

navigable waters within the meaning of Section 902(3) of

the LHWCA, Title 33 United States Code, making the

LHWCA Campo’s remedy against Electro-Coal. Appendix

A-4. Section 902(3) of the LHWCA provides:

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, ship builder, and ship

breaker... .

(emphasis added.)

Under Pizzotolo v. Electro-Coal Transfer Corp., 812

F.2d 977 (5th Cir. 1987), cert. denied, 108 S.Ct. 1013 (1988),

and other precedents of this Court, Campo is precluded

from recovering under the Jones Act since the Jones Act

and the LHWCA are mutually exclusive statutes. In Piz-

zotolo, another claim involving Electro-Coal’s terminal, the

plaintiff was a shore-based terminal worker, like Campo.

Pizzotolo was injured as he attempted to repair one of the

conveyors used to load and unload barges. The court held

that plaintiff was a shore-based harbor worker who had

limited contact with vessels and concluded that Pizzotolo

was not a seaman.

The decisions below are in accord with the decisions

of this Court holding that the Jones Act and the LHWCA

are mutually exclusive statutes. See Victory Carriers, Inc.

v. Law, 404 U.S. 202, 212 n.12 (1971); Swanson v. Marra

Brothers, Inc., 328 U.S. 1, 6-7 (1946); Norton v. Warner Co.,

321 U.S. 565, 570 (1944).

C. SUPREME COURT PRECEDENT.

Petitioners ignore the recent opinions of this Court

interpreting the LHWCA which resolve the questions

raised by Petitioners. These decisions establish that Cam-

po was covered under the LHWCA. In Herb's Welding v.

Gray, 470 U.S. 414 (1985), the Court ruled that the term

‘maritime employment”’ appearing in Section 902(3) of the

LHWCA was not limited to the occupations therein

enumerated: ‘* ‘Maritime employment is not limited to the

occupations specifically mentioned in § 2(3)... .° 470 U.S.

at 423. Further, by use of the word “including” in Section

902(3), ‘Congress indicated that the specifically mentioned

occupations are not exclusive.” /d. at 423 n.9 (citing P.C.

Pfeiffer Company v. Ford, 444 U.S. 69, 77 - 78 n.7 (1979)

and H.R. Rep. No. 92-1441, p.11 (1972)). In Herb’s

Welding, this Court found the scope of coverage of the

LHWCA to be:

[The LHWCA,] as amended, 33 U.S.C. § 901 et

seq., provides compensation for the death or

disability of any person engaged in ‘‘maritime

employment,’ § 902(3), if the disability or death

results from an injury incurred upon _ the

navigable waters of the United States or any ad-

joining pier or other area customarily used by an

employer in loading, unloading, repairing, or

9

building a vessel, § 903(a). Thus, a worker claim-

ing under the Act must satisfy both a ‘‘status”’

and a ‘‘situs”’ test.

470 U.S. at 415-16 (footnote omitted).

Campo meets both the “‘situs’’ and ‘“‘status”’ re-

quirements of the LHWCA. Campo’s accident occurred on

navigable waters aboard a barge which he was aboard

preparing for loading. Appendix A-3-A-4. In Director v.

Perini North River Associates, 459 U.S. 297 (1983), the

claimant was injured on the deck of a cargo barge afloat in

the Hudson River. while giving directions to a crane

operator. A line which was being used to keep the cargo in

place snapped as the cargo was in the process of being

unloaded. After an extensive review of the history and

purpose of the LHWCA, the Supreme Court held that the

claimant was a covered employee under Section 902(3) of

the LHWCA:

We hold only that when a worker is injured on the

actual navigable waters in the course of his

employment on those waters, he satisfies the

status requirement in § 2(3) and is covered under

the LHWCA, providing, of course, that he is an

employee of a statutory ‘‘employer ’ and is not ex-

cluded by any other provision of the Act. We con-

sider these employees to be ‘‘engaged in maritime

employment’ not simply because they are injured

in a historically maritime locale, but because they

are required to perform their duties upon

navigable waters.

Id. at 324 (footnotes omitted).

In Chesapeake and Ohio Railway Company v.

10

Schwalb, 110 S.Ct. 381 (1989), this Court again found that

shore-based terminal workers who were injured at facilities

where coal was transferred to and from vessels were

covered by the LHWCA, and not the Federal Employers

Liability Act (““FELA”’), 45 U.S.C. § 51-60, which the Jones

Act incorporates and follows. Much like Electro-Coal’s ter-

minal, the terminals in Schwalb consisted of conveyor belts

which were used to load and unload coal from vessels. The

workers in Schwalb performed general housekeeping ser-

vices, repairs, maintenance, and other services which were

integral to the loading and unloading operations of their

employers, and were hence covered by the LHWCA:

The employment that is maritime within the

meaning of § 902(3) expressly includes the

specified occupations but obviously is not limited

to those callings. Herb’s Welding, Inc. v. Gray,

470 U.S. 414, 423, n.9, 105 S.Ct. 1421, 1427, n.9,

84 L.Ed.2d 406 (1985); P.C. Pfeiffer Co. v. Ford,

444 U.S. 69, 77-78, n. 7, 100 S.Ct. 328, 334, n. 7,

62 L.Ed.2d 225 (1979). ...

* * *

Although we have not previously so held, we are

quite sure that employees who are injured while

maintaining or repairing equipment essential to

the loading or unloading process are covered by

the Act. Such employees are engaged in activity

that is an integral part of and essential to those

overall processes. That is all that § 902(3) re-

quires. Coverage is not limited to employees who

are denominated ‘‘longshoremen’’ or who

physically handle the cargo.

110 S.Ct. at 384-85 (emphasis added). There can be no

doubt that the work Campo performed was ‘‘an integral or

essential part of loading or unloading a vessel.’ Jd. at 384.

11

Petitioners’ proposed interpretation of the LHWCA is con-

trary to the express wording of the LHWCA and the

precedents of this Court, and would result in every shore-

based harbor worker being deemed a seaman. The lower

courts’ determinations are in full accord with the LHWCA

and the decisions of this Court.

The cases relied on by Petitioners are inapposite and

predate the above-mentioned decisions of this Court. The

original opinion in Legros v. Panther Services Group, Inc.,

874 F.2d 953 (5th Cir. 1989), was vacated by the Fifth Cir-

cuit when it granted rehearing en banc. 874 F.2d at 954. In

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

worker was found not to be a seaman where the work was

performed on a vessel out of navigation with ‘‘neither cap-

tain nor crew.’ 342 U.S. at 190-91. In Norton v. Warner

Co., 321 U.S. 565 (1944), the plaintiff, unlike Campo, *‘had

no duties with the handling of cargo and no shore duties.”

321 U.S. at 568. Grimes v. Raymond Concrete Pile Com-

pany, 356 U.S. 252 (1958), involved a plaintiff who was

assigned to work on a single vessel on the high seas.

Similarly, Senko v. La Crosse Dredging Corp., 352 U.S. 370

(1957), did not involve a shore-based terminal worker. but

rather concerned a crewmember assigned to a dredge who

performed deckhand duties and had ‘‘a significant naviga-

tional function.” 352 U.S. at 373-74.

12

CONCLUSION

The questions presented by the Petitioners do not

merit review because, as a matter of law and fact, Campo

was not a Jones Act seaman since he was not permanently

assigned to a vessel or fleet of vessels. Campo was covered

under the LHWCA since his work involved the loading and

unloading of barges at a marine terminal on the Mississippi

River. The decisions of the lower courts correctly applied

the Jones Act, the LHWCA, and the precedents of this

Court. The questions raised by Petitioners have been

resolved by the earlier decisions of this Court which inter-

pret the LHWCA and discuss the term ‘‘maritime employ-

ment” as used in Section 902(3) of the LHWCA.

Respectfully submitted:

GEORGE R. ALVEY., JR.*

EDITH BROWN CLEMENT

RICHARD D. BERTRAM

Jones, Walker. Waechter.

Poitevent, Carrere & Denegre

201 St. Charles Avenue

New Orleans. LA 70170

Telephone: (504) 582-8230

Attorneys for Electro-Coal

Transfer Corporation,

Respondent

*Counsel of Record

A-1l

APPENDIX A

APPENDIX: Listing of Parent and Subsidiary Companies

in Accordance with Supreme Court Rule 29.1:

Electro-Coal Transfer Corporation

TECO Energy, Inc.