Opposition Brief — Bach v. Trident Steamship Co.

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No. 90-1578 May © 199)

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IN THE a

Supreme Court of the United States

OCTOBER TERM, 1990

HELEN EHRET BACH, EUGENE G. BACH, III and

JANET B. LASHLEY,

: Petitioners

TRIDENT STEAMSHIP COMPANY, INC.,

KAISER ALUMINUM AND CHEMICAL CORPORATION,

Respondents

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION

ROBERT H. MURPHY

Counsel of Record

KENNETH J. SERVAY

THOMAS D. FORBES

CHAFFE, MCCALL, PHILLIPS,

TOLER & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

Attorneys for Respondents,

Trident Steamship Company,

Inc. and Kaiser Aluminum

May 8, 1991 and Chemical Corporation

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QUESTIONS PRESENTED FOR REVIEW

Respondents, Trident Steamship Company and Kaiser

Aluminum and Chemical Corporation, disagree with the

statement of the question presented by Petitioner. The

questions presented for consideration are:

1. Whether the United States Court of Appeals

for the Fifth Circuit correctly determined, con-

sistent with this Court’s recent opinion in Mc-

Dermott International, Inc. v. Wilander,

U.S. , 111 S.Ct. 807, 112 L.Ed.2d 866 (1991),

that petitioner’s decedent, a land-based, river port

pilot, is not a “seaman” entitled to state a claim

as such under the Jones Act, 46 U.S.C. app.

§ 688, or the general maritime law?

2. Whether summary judgment in favor of respond-

ents is appropriate, regardless whether decedent

was a seaman, where the uncontradicted evidence

demonstrates that petitioners were unable to

prove their case by a preponderance of the evi-

dence?

(i)

ii

LIST OF INTERESTED PERSONS

AND RULE 29.1 LIST

The parties to the proceeding below were petitioners/

plaintiffs, Helen Ehret Bach, Eugene G. Bach, III, Janet

Bach Lashley, and _ respondents/defendants, Trident

Steamship Company, Inc., the owner of the M/V JAY-

MAT TRIDENT, and Kaiser Aluminum and Chemical

Corporation, the vessel’s charterer. Although petitioners

named the vessel, the M/V JAYMAT TRIDENT, as a

defendant and a respondent, petitioners never seized the

vessel. Thus, the vessel was not a party in the courts

below and is not a party before this court.

Pursuant to this Court’s Rule 29.1, respondent, Trident

Steamship Company, Inc., certifies that it is owned by

Standard Shipping, Inc. and various individual owners.

Trident has no subsidiaries that are not wholly owned.

Pursuant to Rule 29.1, respondent, Kaiser Aluminum

and Chemical Corporation, certifies that it is owned by

KLU Holdings, Inc. and Brown Brothers, Harriman, &

Co. Its subsidiaries that are not wholly owned are as

follows: Anglesey Aluminum Limited, Bauxita Da

Amazonia Limitada, Delta Holdings, Inc., Hopewell In-

ternational Insurance, Ltd., Kaiser Jamica Bauxite Com-

pany, Oakland City Center Hotel Company, Inc., Queens-

land Alumina Finance N.V., Queensland Alumina Hold-

ings N.V., Queensland Alumina Limited, Queensland

Alumina Security Corporation, Second Queensland Alum-

ina Security Corporation, Tortuga Casualty Company,

United Insurance Company, and Volta Aluminum Com-

pany, Limited.

TABLE OF CONTENTS

ot hg 4 5, os |

LIST OF PARTIES AND RULE 29.1 LIST ......0000.2....

gs sy ys

py ee yy lt ing | 2 0F| |

A. The Practice of Pilotage under Louisiana Law..

LL

cs seessnecesnsusuceneee

D. The District Court Proceeding —.........00000.000000....

E. The Fifth Circuit's Opinion ..................................

REASONS FOR DENYING THE WRIT ..........000020......

I. THE DECISIONS OF THE FIFTH CIRCUIT

II.

Il.

AND THE DISTRICT COURT ARE CON-

SISTENT WITH THIS COURT’S RECENT

WILANDER DECISION ...W000200.22.220...-eceeeceeeeeeees

THIS COURT SHOULD REFUSE TO ESTAB-

LISH ANY EXCEPTIONS TO THE “PER-

MANENT CONNECTION TO A VESSEL”

es eicnrpchiasoonssiaednttonieieeneree

RESPONDENTS’ ENTITLEMENT TO SUM-

MARY JUDGMENT ON CAUSATION AND

BURDEN OF PROOF GROUNDS RENDERS

THIS CASE INAPPROPRIATE FOR RE-

eit adatonadiscentienndbrnremnnaiesunoancsmcenedinneaone

(iii)

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ona wo Wd

14

iv

TABLE OF AUTHORITIES

CASES Page

American Ship Building Co. v. National Labor Re-

lations Board, 380 U.S. 300 (1965) .................... 16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

PIED. shes hiontCicicichidedenieiiahaliohaiicadadspieuiicdiacmadidedscccatiinae 20

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

I a eb imaniiaenenee 8, 21

Bisso v. Inland Waterways Corp., 349 U.S. 85

(EB Se I Zee RON VE SOR SORE na 13

Blum v. Stenson, 465 U.S. 886 (1984) ................... 16

Bureau of Alcohol, Tobacco and Firearms v. Fed-

eral Labor Relations Authority, 464 U.S. 89

eR EUS ARIES SOF ELI LPM alee SN Cee 16

Celotez Corporation v. Catrett, 477 U.S. 317

ae a tetinilen- cas 13, 20

Cooley v. Board of Wardens, 53 U.S. (12 How.)

oI cist beh celica ctleniabiadincesaaiibichalbadetaiebaianiidicateven 14, 15

Diebold v. Moore McCormack Bulk Transport

Lines, 805 F.2d 55 (2nd Cir. 1986) ..................... 19

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

(9th Cir. 1990), cert. granted in part, 111 S.Ct.

1071, 59 U.S.L.W. 3577, 3581 (U.S. Feb. 25,

| RRR et COR.“ Saari 5 eae eas eS 14, 17,18

Griffith v. Wheeling Pittsburg Steel Corp., 521 F.2d

81 (3d Cir. 1975), cert. denied, 423 U.S. 1054

| ea ania sti cenonnasesdaieainaedemicesmate 11

Hurst v. Pilings & Structures, Inc., 896 F.2d 504

I: BS TI cinieticscncaconsnsiananleseateahididtanvaxenes 12

Johnson v. John F. Beasley Construction Co., 742

F.2d 1054 (7th Cir. 1984), cert. denied, 469 U.S.

a iene aenn 10, 11

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

cert. denied sub nom. Connecticut v. Klarman,

BR! BR Ee eo ee 11

Litherland v. Petrolane Offshore Const. Services,

- oe BB Bi oe SS . | 19

Matter of Hechinger, 890 F.2d 202 (9th Cir. 1989),

cert. denied sub nom. Caskie v. Hechinger, 111

RR ERNIE AI St eve ae OO a 19

Vv

TABLE OF AUTHORITIES—Continued

Page

McDermott International, Inc. v. Wilander,

US. , 111 S.Ct. 807, 112 L.Ed.2d 866

6 | ERPS Na! DORR a Os) ae EN passim

Matsushita Electric Industrial Co. Ltd. v. Zenith

Radio Corp., 475 U.S. 574 (1986) 2.0.0.0. 20

National Labor Relations Board v. Brown, 380 U.S.

RS EE Cs MO aa eee RI Cy iets CE Nae ae 16

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

Ag ERP SRE Dace ROEM NT TTC LE eo 8,11

Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d

I I ani a a 11

Slatton v. Martin K. Eby Construction Co., Inc.,

506 F.2d 505 (8th Cir. 1974), cert. denied, 421

eS Ie RII daccnaiccsoncicet oncaddnctetas wai alamo 11

Snyder v. Whittaker Corp., 839 F.2d 1085 (5th Cir.

SOUT» deictiitutnnctetudacineRieenddicatcicus Cette seam. 19

Stafford v. Perini Corp., 475 F.2d 507 (1st Cir.

TEE wing rscatecasesect a Uh a mere et Rt ree 11

Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th

Re I ask es he 2 ee Ee 11

United States v. Thompson, 28 F. Cas. 102 (C.C.D.

CE Se Os eee Oana 14, 15

Whittington v. Sewer Construction Co., “ne., 541

F.2d 427 (4th Cir. 1976) ........0000.. oa eS, 11

STATUTES

scenes Act, 4 USC. apm. 3 GSS ......................-......: passim

Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. § 901 et seq. .............. passim

Se TE ID ssc csvcscadecciincensescncececareconscisasencnten 15

I ceudewsunsbomnemiiecantinn 8

ls I nc. cs vscavasewwavenuseonciesucnvees 3, la

i IIT oon cescorcnnscevesecevessunssvransovaseene 2,1la

Ee 2, 2a

a ee 8,12

Ee 3, 12

Ei, TR, ie I anon ne ececcnnncoceccccoocenecssnsacseaces 3, 12, 3a

Ba i MN ERO oan csicn ccscecacccsioscovcnwesnsovacocss 2,3a

La. Rev. Stat. 34:1122(A) (1) (a) ........00000000.e 2, 3a

vi

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page

Longshoremen’s Act, Opinion No. 22 (1927 ), re-

printed at 1928 % {= eee 15, 16

aad uname

IN THE

Supreme Cut of the United States

OCTOBER TERM, 1990

No. 90-1578

HELEN EHRET BACH, EUGENE G. BACH, III and

JANET B. LASHLEY,

. Petitioners

TRIDENT STEAMSHIP COMPANY, INC.,

KAISER ALUMINUM AND CHEMICAL CORPORATION,

Respondents

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION

Respondents, Trident Steamship Company, Ine. and

Kaiser Aluminum and Chemical Corporation, submit that

there is no basis for granting a writ of certiorari in this

ease. This Court in McDermott International, Inc.- v.

Wilander, US. , 111 S.Ct. 807, 112 L.Ed.2d 866

(1991), reviewed and approved the longstanding test

applied by the United States Court of Appeals for the

Fifth Circuit for defining who is a “seaman” entitled to

state a cause of action under the Jones Act, 46 U.S.C.

app. § 688. Because the opinion of the Fifth Circuit in

this case, consistent with the Wilander test, correctly de-

termined that petitioners’ decedent was not a seaman, this

case does not justify issuance of a writ of certiorari.

Furthermore, petitioners’ inability to prove their case

by a preponderance of the evidence rendered summary

2

judgment appropriate whether or not decedent was a sea-

man. Thus, respondents’ factual entitlement to summary

judgment negates any legal issue that this case may pre-

sent and renders this case inappropriate for review by

this Court.

STATEMENT OF THE CASE

Petitioners have omitted from their statement many

important facts. The opinions below (see Petitioners’

appendix, A-1 to A-49), while referencing most of the

relevant facts, do so throughout the text of three separate

opinions. Thus, respondents restate the relevant facts as

follows:

On December 26, 1986, petitioners’ decedent, Eugene

G. Bach, a Mississippi River port pilot (and not a “bar

pilot” as petitioners erroneously label him), collapsed and

died aboard the M/V JAYMAT TRIDENT shortly after

he arrived on the deck of that vessel. Although Bach’s

death resulted from a serious occlusive coronary artery

disease, commonly known as “hardening of the arteries,”

and could have as easily occurred in his living room as

on the vessel, petitioners filed this lawsuit seeking to hold

respondents responsible for his death.

A. The Practice of Pilotage under Louisiana Law

Under Louisiana law, “river port pilots” have the exclu-

sive right to provide pilotage services to most vessels on

the Mississippi River between New Orleans and Pilottown

(at the mouth of the river). See La. Rev. Stat. 34:996.'

The fees charged by the river port pilots are set by

regulation. See La. Rev. Stat. 34:997, 1121(A), 1122

(A) (1) (a). Masters, owners, and agents of vessels tra-

versing the Mississippi River between New Orleans and

Pilottown are required by law to hire a river port pilot

1 The Louisiana statutes regarding pilotage cited in this opposi-

tion are reproduced in the appendix to this writ opposition at la

to 3a.

3

or face severe civil and criminal penalties for failing to do

so. See La. Rev. Stat. 34:1002, 1002.1, 1009. Louisiana

law authorizes the river port pilots to form an association.

See La. R.S. 34:995. As allowed by Louisiana law, the

river port pilots have formed and operate out of the

Crescent River Port Pilots Association. The Pilots’ Asso-

ciation, as was done in this case, assigns one of its mem-

ber pilots to a vessel when it receives a call from a vessel’s

master, owner, or agent. A pilot boarding boat then

transports the assigned pilot to the oceangoing vessel,

whereupon the pilot boards the vessel and then assists in

navigating it between the aforementioned points.

Two of the petitioners in this case, Eugene G. Bach,

III, decedent Bach’s son and a river port pilot like his

father, and Mrs. Helen Bach, decedent’s wife, testified as

to the nature of pilotage as practiced by the river port

pilots. Their testimony indicates that pilots are independ-

ent contractors and are not part of the crew of any vessel.

River port pilots merely sail with a vessel between two

points in the Mississippi River. River port pilots have

no regular, continuous, or permanent connection with any

vessel and leave the vessel before it reaches the Gulf of

Mexico. The IRS Form K-1 forwarded to decedent’s cor-

poration by the pilots’ association indicated that the pilots’

association acts as a partnership in passing the income it

collects from pilotage feés down to its members. Decedent

Bach was a member of the association through his per-

sonal corporation. Thus, the pilots’ association forwarded

the IRS Form K-1 reflecting decedent’s corporation’s share

of the pilotage income to his personal corporation. In

turn, decedent’s personal corporation employed decedent.

B. The Underlying Facts

One of the normal duties of a river pilot is to reach

the deck of vessels to which the pilot is assigned by climb-

ing rope-railed and wooden-stepped pilot ladders. Once

the pilot reaches the deck via the pilot ladder, his normal

4

duties include ascending several flights of stairs to reach

the ship’s bridge or wheelhouse. Decedent Bach, 61 years

old at the time of his death, had been performing such

duties for over 30 years.

Early on the morning of December 26, 1986, a pilot

boat transported Bach to the M/V JAYMAT TRIDENT.

Bach stepped onto the pilot ladder from a platform on

the top of the pilot boat and climbed the pilot ladder

approximately 21 feet to the ship’s deck.? He then as-

cended four flights of stairs from the deck to the vessel’s

bridge. According to the vessel’s deck log, Bach reached

the wheelhouse on the ship’s bridge at 2:30 a.m. and

relieved Pilot Taylor, the Baton Rouge to New Orleans

pilot. The record is devoid of any evidence indicating

that Bach suffered any injury or had any difficulty reach-

ing the bridge.

Two minutes later, at 2:32 a.m. according to the ves-

sel’s log, Bach unexpectedly collapsed and became un-

conscious while the vessel was in navigation and proceed-

ing down the Mississippi River. The vessel’s quarter-

master called the vessel’s captain, who was standing on

the port side bridge wing waiting for Pilot Taylor to

descend the pilot ladder. The captain ran to the wheel-

house, where he saw Bach lying on the floor. He ran back

to the port wing and yelled for Pilot Taylor to return

to the bridge.

Pilot Taylor returned to the bridge and took control of

the vessel, which was in an emergency situation. At the

request of the vessel’s captain, Pilot Taylor called for

emergency medical assistance and brought the vessel to

2The summary judgment evidence indicated that the freeboard

of the M/V JAMAT TRIDENT, i.e., the distance between the vessel’s

deck and the surface of the water, was no more than 32.36 feet, and

probably was somewhat less. The pilot boat platform from which

Bach boarded the vessel was 11 feet, 1'5 inches above the water line.

Thus, Bach’s climb on the pilot ladder was no more than approxi-

mately 21 feet.

5

anchor. Although Pilot Taylor called for medical assist-

ance shortly after his return to the bridge at 2:34 a.m.,

emergency medical personnel did not arrive until some

time after 3:00 a.m. (the deck log lists the time of arrival

as 3:30 a.m.). While the vessel was being maneuvered

to anchor, a crewmember checked Bach and found no

pulse. When paramedics arrived, they checked Bach and

also found no pulse. Bach was placed on a stretcher and

transported to shore.

C. The Medical Evidence

While petitioners seek to hold respondents responsible

for Bach’s death, the uncontradicted medical evidence,

including the deposition testimony of petitioners’ own

medical expert, demonstrates that Bach had severe “hard-

ening of the arteries” and would have died regardless of

the vessel’s actions.

Decedent was transferred from the vessel to the Orleans

Parish Coroner’s Office, where an autopsy was performed.

The Coroner classified decedent’s death as “natural,” re-

sulting from “severe stenotic calcific coronary athero-

sclerosis as well as other conditions.”

Petitioners’ medical expert, Dr. John H. Phillips, the

head of cardiology at Tulane University Medical Center,

testified by deposition that decedent had occlusive coronary

artery disease, commonly known as “hardening of the

arteries.” Decedent had only “pinpoint lumens” in his

arteries, meaning that his arteries were 90 to 99 percent

blocked. Dr. Phillips classified decedent's condition at the

time of his death as extremely serious. He testified that

had he examined decedent before his death, he wou!d have

instructed him to stop working and to refrain from

physical activity and would have scheduled him for imme-

diate coronary by-pass surgery.

Dr. Phillips explained that Bach’s death resulted when

the restricted blood flow through the clogged arteries

_

6

caused “ventricular fibrillation,” that is, “where the elec-

trical activity of the heart, particularly in the ventricles,

is so distorted that there is no effective cardiac contrac-

tion.” As a result, the heart stops pumping. After ven-

tricular fibrillation is present for a few minutes, in some

cases only a few seconds, it can only be reversed, and the

party can only be saved, by electrical shock treatment

using a special medical device known as a defibrillator.

Dr. Phillips testified that in more than 90, and probably

more than 95 percent of the cases where ventricular fibril-

lation sets in, a defibrillator is needed to save the party.

Dr. Phillips stated that defibrillators are found primarily

in hospitals, in some doctors’ offices, and possibly in some

emergency medical units, and that they are not likely to

be equipment aboard an ocean-going cargo vessel.*

Dr. Phillips further testified that the more advanced

the condition, the less likely the partys chances of sur-

vival, even if CPR and electrical defibrillation had been

promptly administered. He opined that the majority of

persons with decedent’s condition would not have sur-

vived, even had CPR and electrical defibrillation been

promptly administered. Outside a hospital Coronary Care

Unit, decedent’s chances of survival were extremely slim.

Dr. Phillips also testified that while decedent’s activity

in climbing aboard the vessel may have been a factor in

his death, he could not state shat decedent would not have

collapsed and died if he had not engaged in that activity.

Nor could he state that decedent would not have died

had he climbed an accommodation staircase rather than a

pilot’s ladder. Dr. Phillips opined that someone with

decedent’s severe heart condition could have suffered a

heart attack while sleeping, sitting, watching television,

or walking; there is no standard precipitating event.

3 Furthermore, many emergency medical units are not equipped

with electrical defibrillators. The emergency medical unit that

responded to the ship’s call for help was not so equipped.

7

He testified that just as many heart attacks occur at

rest as during exercise, maybe more.

Dr. Phillips assessed Bach’s chances of dying, even if

CPR and electrical defibrillation had been promptly ad-

ministered, at 85 percent or somewhat greater, with his

chances of survival possibly in the 0 to 10 percent range.

D. The District Court Proceeding

Petitioners filed suit in the United States District Court

for the Eastern District of Louisiana, alleging that de

cedent was a seaman and that they were entitled to

recover damages under the Jones Act and the general

maritime law. They alleged that respondents Trident and

Kaiser were negligent and that the M/V JAYMAT TRI-

DENT was unseaworthy, because the vessel allegedly vio-

lated applicable regulations in providing decedent with

the customary rope and wooden pilot ladder to board the

vessel, rather than an accommodation staircase. Peti-

tioners asserted that respondents were negligent in provid-

ing decedent access to the vessel by means of a tradi-

tional pilot ladder, because the distance decedent had to

climb on the ladder allegedly exceeded the maximum dis-

tance prescribed by applicable marine regulations. Peti-

tioners also alleged that respondents were negligent, be-

cause the crew failed to administer CPR immediately

after decedent’s collapse.

Respondents initially brought a summary judgment mo-

tion seeking dismissal of petitioners’ Jones Act and unsea-

worthiness claims, asserting that decedent was not a sea-

man entitled to these remedies. On October 12, 1988, the

district court granted respondents’ summary judgment

motion dismissing these claims. See Petitioners’ Appen-

dix, A-26 to A-32. It subsequently denied petitioners’

“motion for a new trial’ on these claims.

Before the district court dismissed petitioners’ Jones

Act and general maritime law claims, petitioners amended

8

their complaint to state an alternative claim. They al-

leged that if decedent were not a seaman, they neverthe-

less were entitled to recovery for respondents’ alleged neg-

ligence under Section 5(b), 33 U.S.C. § 905(b), of the

Longshore and Harbor Workers’ Compensation Act

(“LHWCA”). Respondents brought a second summary

judgment motion seeking dismissal cf this claim. The

district court granted this motion on March 27, 1989.

See Petitioners’ Appendix, A-34 to A-49. The district

court found, as a matter of law, that respondents had not

violated any regulation, and thus, were not negligent in

providing decedent with the customary pilot’s ladder to

board the vessel. Jd., A-88 to A-48. Regarding petition-

ers’ failure-to-administer-CPR claim, the district court

found that under the undisputed facts of the case, 1.e.,

the testimony of petitioners’ own medical expert, peti-

tioners could not meet their burden of proving by a pre-

ponderance of the evidence that any failure to administer

CPR caused decedent’s death. Jd., A-43 to A-49.

E. The Fifth Circuit’s Opinion

On January 10, 1991, the United States Court of Ap-

peals for the Fifth Circuit entered its opinion and judg-

ment affirming the district court’s judgment. Bach v. Tri-

dent Steamship Co., Inc., 920 F.2d 322 (5th Cir. 1991) ;

Petitioners’ Appendix, A-1 to A-25. The Court of Ap-

peals, employing its longstanding test first enunciated in

Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959),

found that decedent, a land-based river pilot, was not a

seaman. The court found that while decedent’s job as a

river pilot contributed to the function or mission of a

vessel, decedent had no permanent connection to the vessel

or an identifiable fleet of vessels as required to be a sea-

man. 920 F.2d at 324-26; Petitioners’ Appendix, A-2 to

A-7.

The appellate court also affirmed the dismissal of pe-

titioners’ seaworthiness claim and their LHWCA general

negligence claim. 920 F.2d at 326-27; Petitioners’ Ap-

9

pendix, A-8 to A-11. The court found that, in light of

the uncontradicted medical evidence discussed above, “no

rational factfinder could conclude that the crew’s failure

to administer CPR more likely than not caused Bach’s

death.” 920 F.2d at 327; Petitioners’ Appendix, A-9. The

court further found that respondents were not negligent

in providing decedent access to the vessel by means of a

pilot ladder, because the 21 feet Bach had to climb on the

pilot ladder were well within the 30 feet maximum al-

lowed by applicable marine regulations. 920 F.2d at 326-

27; Petitioners’ Appendix, A-§ to A-9.

REASONS FOR DENYING THE WRIT

$

I. THE DECISIONS OF THE FIFTH CIRCUIT AND

THE DISTRICT COURT ARE CONSISTENT WITH

THIS COURT’S RECENT WILANDER DECISION

This term, in McDermott International, Inc. v. Wilander,

USS. , 111 S.Ct. 807, 112 L.Ed.2d 866 (1991),

this Court considered the conflicting standards employed

by the circuits in determining whether a litigant is a sea-

man entitled to sue under the Jones Act, 46 U.S.C. app.

§ 688 et seg. In Wilander, a Fifth Circuit case like the

present case, the courts below applied the longstanding

test of Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.

1959), in finding that Wilander, an oilfield worker as-

signed to paint a boat working in the Persian Gulf, was a

seaman. Under the Robison test, as developed by the

Fifth Circuit, a party is considered a seaman if: (1) he

or she is permanently attached to or performs a substan-

tial part of his or her work aboard a single vessel or an

identifiable fleet of vessels and (2) if the party’s employ-

ment contributes to the function or mission of the vessel

or an identifiable fleet of vessels. Wilander, 111 S.Ct. at

809.

However, McDermott, the petitioner in that case, »I-

leged that a mere contribution to the function or mission

of the vessel did not render the party a seaman. Mc-

10

Dermott argued that the correct test for determining

whether a party is a seaman is the stricter test applied

by the Seventh Circuit in Johnson v. John F. Beasley Con-

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

469 U.S. 1211 (1985). Wilander, 111 S.Ct. at 809-10.

Under the Johnson test, to be classified as a seaman, a

party’s employment must make “a significant contribu-

tion to the maintenance, operation or welfare of the trans-

portation function of the vessel,” and not merely the gen-

eral function or mission of the vessel. Wilander, 111 S.Ct.

at 810, quoting Johnson, 742 F.2d at 1063.

Thus, the specific question addressed by this Court was

“whether one must aid in the navigation of a vessel in

order to qualify as a ‘seaman’ under the Jones Act.”

Wilander, 111 S.Ct. 809. Weighing these two inconsistent

requirements, this Court, agreeing with the Fifth Circuit

test, held that seaman’s status does not require that the

party contribute to the transportation function of the ves-

sel. 111 S.Ct. at 817.

- However, in resolving this question, this Court delineated

the other elements necessary for a party to be considered

a seaman. The Court extensively examined the Jones Act

and the LHWCA and their interpreting jurisprudence.

Id., 111 S.Ct. at 810-17. The Court explained that the

purpose of the LHWCA was to remove from the scope of

Jones Act coverage land-based maritime workers, while

leaving as seamen sea-based maritime employees. /d., 111

S.Ct. at 813-14. The Court concluded that the phrase,

“master or member of a crew,” as used in the LHWCA

exemption from coverage “‘restates who a ‘seaman’ under

the Jones Act is supposed to be: a sea-based maritime em-

ployee.” Jd., 111 S.Ct. at 814.

In addition to recognizing that the Jones Act requires

a party claiming the status of a seaman to be a “sea-

based” maritime employee, and not a “land-based” em-

ployee, this Court also recognized another mandatory re-

quirement of seaman’s status: the party must owe his

11

or her allegiance to a vessel at sea—not to a land-based

employer. Id., 111 S.Ct. at 813-14, 817. The Court em-

phasized that the “key” factor in determining seaman’s

status is whether the party has an employment-related

connection to a vessel in navigation. 7d., 111 S.Ct. at 817.

Thus, in holding that a seaman (1) must be sea-based

and not land-based and (2) must have an employment-

related connection to a vessel, this Court identified the

same factors as did the Fifth Circuit in Robison: a sea-

man must have a permanent attachment to a vessel or

perform substantial work aboard a vessel or, at the very

least, aboard an identifiable fleet of vessels. Robison, 266

F.2d at 779. The seaman’s status test established in

Wilander essentially is no more than a restatement of the

Robison test applied by the Fifth Circuit in this case.

While the circuits may have disagreed regarding the

“aid in the transportation function of the vessel” require-

ment, there is no disagreement regarding this “permanent

attachment to a vessel” requirement. Consistent with Wil-

ander and the Fifth Circuit Robison test, all other cir-

cuits that have considered the issue have held that, for a

party to be considered a seaman, the party must have a

permanent connection with a vessel. #.g., Stafford v.

Perini Corp., 475 F.2d 507, 510-11 (1st Cir. 1973) ; Klar-

man v. Santini, 503 F.2d 29, 33 (2d Cir. 1974), cert.

denied sub nom. Connecticut v. Klarman, 419 U.S. 1110

(1975) ; Griffith v. Wheeling Pittsburg Steel Corp., 521

F.2d 31, 36 (8d Cir. 1975), cert. denied, 423 U.S. 1054

(1976) ; Whittington v. Sewer Construction Co., Inc., 541

F.2d 427, 434 (4th Cir. 1976) ; Petersen v. Chesapeake &

Ohio Ry. Co., 784 F.2d 732, 737 (6th Cir. 1986); John-

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

1062-63 (7th Cir. 1984), cert. denied, 469 U.S. 1211

(1985) ; Slatton v. Martin K. Eby Construction Co., Inc.,

506 F.2d 505, 510 (8th Cir. 1974), cert. denied, 421 U.S.

931 (1975); Stanfield v. Shellmaker, Inc., 869 F.2d 521,

12

523 (9th Cir. 1989) ; Hurst v. Pilings & Structures, Inc.,

896 F.2d 504, 505 (11th Cir. 1990).

There is no basis for granting a writ in this case. The

Fifth Circuit’s decision does not conflict with this Court’s

Wilander decision as argued by petitioners. The Fifth

Circuit’s decision, finding decedent not to be a seaman,

was based on the uniformly agreed-upon requirement that

seaman’s status requires that the party have a permanent

connection with a vessel, or at the very least, with an

identifiable fleet of vessels. As the Fifth Circuit stated,

“Bach’s survivors do not seriously argue that he was per-

manently attached to or did substantial work on board

the M/V JAYMAT TRIDENT. The record clearly re-

veals that he fulfilled neither requirement.” 920 F.2d at

324; Petitioners’ appendix, A-3.

The uncontradicted evidence in this case supports the

Fifth Circuit’s conclusion. Decedent had no employment

connection to the vessel or its owner or charterer. Rather,

he was an employee of his personal corporation, which re-

ceived its share of the pilotage fees forwarded to it by the

pilots’ association. Decedent was not aboard the vessel as

a matter of the vessel owner’s choice. Rather, he was

aboard, because Louisiana law requires a pilot to be

aboard and severely penalizes any vessel owner who fails

to use a river port pilot who offers his services. See La.

Rev. Stat. §§ 34:1002, 1002.1, 1009. Two of the three pe-

titioners in this case, decedent’s widow, Helen Bach, and

decedent’s son, Eugene G. Bach, III (who, like his father,

is a river pilot), testified in their respective depositions,

that decedent had no permanent connection with any ves-

sel. Decedent’s son testified that river port pilots merely

assist a vessel between two points in the Mississippi

River. He further testified that river port pilots have no

regular, continuous, or permanent connection with any

vessel, and that they leave the vessel before it reaches the

Gulf of Mexico. Decedent’s wife agreed that river port

pilots are not members of any vessel’s crew. Finally,

13

there is no evidence in this case that decedent had any

permanent connection with any identifiable fleet of ves-

sels owned or controlled by respondents. Rather, dece-

dent simply engaged in river port pilotage as an inde-

pendent contractor on random vessels as assigned by the

pilots’ association.‘

Thus, petitioners’ own testimony verifies the correctness

of the Fifth Circuit’s decision. This case is squarely gov-

erned by the seaman’s status test recognized in Wilander.

Decedent cannot be a seaman because petitioners’ own

testimony established that decedent lacked the “permanent

connection to a vessel’? requirement recognized by this

Court in Wilander and recognized by every circuit that

has addressed the issue. Thus, petitioners could not meet

their burden of proof regarding a material requirement

of seaman’s status.

Summary judgment in favor of the defendants is ap-

propriate where plaintiffs fail to demonstrate at least the

existence of a question of fact regarding a material ele-

ment upon which plaintiffs would bear the burden at trial.

Celotex Corporation v. Catrett, 477 U.S. 317, 322-23

(1986). The courts below correctly sustained respond-

ents’ summary judgment motion. This case provides no

important question for this Court’s review.

4 This Court has recognized the independence of pilots and their

want of allegiance to any employer:

Pilots hold a unique position in the maritime world and have

been regulated extensively both by the States and Federal

Government. Some state laws make them public officers, chiefly

responsible to the State, not to any private employer. Under

law and custo.n they have an independence wholly incompatible

with the general obligations of obedience normally owed by an

employee to his employer. Their fees are fixed by law and their

charges must not be discriminatory. As a rule no employer, no

person can tell them how to perform their pilotage duties.

Bisso v. Inland Waterways Corp., 349 U.S. 85, 93-94 (1955) (foot-

notes omitted).

14

Il. THIS COURT SHOULD REFUSE TO ESTABLISH

ANY EXCEPTIONS TO THE “PERMANENT CON-

NECTION TO A VESSEL” REQUIREMENT

As discussed above, every circuit that has considered

the question has held that seaman’s status requires the

party to have a permanent connection to a vessel, or at

the very least, to an identifiable fleet of vessels under a

common control. In Wilander, this Court acknowledged

this requirement. Petitioners contend that this Court

should carve an exception into this requirement for river

port pilots like decedent. See Petitioners’ Petition, 6-12.

Petitioners cite United States v. Thompson, 28 F. Cas.

102 (C.C.D.Mass. 1832) (No. 16,492) and Cooley v.

Board of Wardens, 53 U.S. (12 How.) 299 (1852) for

the proposition that pilots have always been considered

seamen. See Petitioners’ Petition, 8-9. Petitioners fur-

ther argue that pilots should be considered seamen, be-

cause their job is inconsistent with other workers covered

by the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901 et seg., and because a 1927 LHWCA

administrative interpretation opined that pilots were not

covered by that act. See Petitioners’ Petition, 10-12. Pe-

titioners argue that this Court has granted a writ of

certiorari in Gizont v. Southwest Marine Inc., 909 F.2d

385 (9th Cir. 1990), cert. granted in part, 111 S.Ct.

1071, 59 U.S.L.W. 3577, 3581 (U.S. Feb. 25, 1991), and

that this case would be a good companion case to Gizoni.

Petitioners’ arguments provide no basis for granting a

writ.

First, the two cases petitioners rely upon in classifying

pilots as seamen are inapposite and do not address the

question. Wilander has held that the Jones Act and the

LHWCA provide the basis for determining Who is a sea-

man. Jd. 111 S.Ct. at 814-17. Both Thompson and Cooley

were decided in the 19th Century, long before passage of

the Jones Act and the LHWCA. Furthermore, neither

case contains any analysis of the requirements for sea-

man’s status, even outside the cuntext of the Jones Act

15

and the LHWCA.* Neither case addressed the personal

injury recovery rights of one claiming to be a seaman.

Thus, neither case addresses the mutually exclusive pro-

visions of the Jones Act and the LHWCA—the two statu-

tory enactments that this Court has held define seaman’s

status. See Wilander, 111 S.Ct. at 814-17.

Second, the LHWCA provides no basis for classifying

pilots as seamen. The plain language of that Act does

not limit covered workers to longshore workers, but

broadly classifies covered employees as “any person(s]

engaged in maritime employment” who are not within an

exception to the Act’s coverage. 33 U.S.C. § 902(3). De-

cedent, as a river pilot, clearly was engaged in “maritime

employment.” While Section 902(3)(G) excludes from

the Act’s coverage “a master or member of a crew of

any vessel,” a river port pilot cannot fall within that cate-

gory. Wilander, consistent with every circuit court that

has addressed the question, has held that the LHWCA

phrase, “master or member of a crew of u.ny vessel,” has

the same meaning as the term “seaman” as used in the

Jones Act. Wilander, 111 S.Ct. at 814,817. Decedent can-

not fit within the definition of a seaman because he did

not meet the “permanent connection to a vessel” require-

ment recognized by Wilander and every circuit that has

addressed the issue. Thus, because decedent could not

qualify as a seaman, decedent could not be within the

“master or member of a crew” exclusion from LHWCA

coverage. Accordingly, decedent necessarily was a mari-

time worker covered by the LHWCA. Any other ruling

would conflict with the express mandate of Wilander.

Furthermore, river port pilots are independent con-

tractors and land-based workers who board innumerable

vessels for a few hours at a time. They have no perma-

nent connection to any vessel or identifiable ‘eet of ves-

5 Cooley questioned the constitutionality of a Pennsylvania’s stat-

utory compulsory pilotage scheme for the Port of Philadelphia.

Thompson involved a criminal mutiny charge against a crewmember.

16

sels. The Fifth Circuit’s decision is consistent with this

Court’s mandate in Wilancer that the LHWCA, not the

Jones Act, covers such land-based maritime workers who

owe no allegiance to a vessel. Wilander, 111 S.Ct. at

813-14.

Third, the 1927 LHWCA administrative interpretation

of “master or member of a crew of any vessel” cited by

petitioners provides no basis for classifying decedent as

a seaman. In that opinion, Longshoremen’s Act, Opinion

No. 22 (1927), reprinted at 1928 A.M.C. 263-64, the

United States Employees Compensation Committee, rely-

ing on a number of 19th Century cases noting a pilot’s

status a master pro hac vice while aboard the vessel,

opined that a pilot was within the “master or member of

a crew” exception to LHWCA coverage. /d.

Statutory interpretation should begin and end with the

plain language of the statute unless the statutory lan-

guage is unclear. See Blum v. Stenson, 465 U.S. 886, 896

(1984). Furthermore, administrative interpretations are

not entitled to deference when a sound judicial analysis

finds a contrary reading of the statute as supported by

statutory language, purpose, and history:

... the “deference owed to an expert tribunal can-

not be allowed to slip into a judicial inertia which

results in the unauthorized assumption by an agency

of the major policy decisions properly made by Con-

gress.” ... [The courts] must not “rubber stamp...

administrative decisions that they deem inconsistent

with a statu‘ory mandate or that frustrate the con-

gressional policy underlying a statute.”

Bureau of Alcohol, Tobacco and Firearms v. Federal

Labor Relations Authority, 464 U.S. 89, 97 (1983), quot-

ing American Ship Building Co. v. National Labor Rela-

tions Board, 380 U.S. 300, 318 (1965) and National

Labor Relations Board v. Brown, 380 U.S. 278, 291-92

(1965).

\

POOR are

17

The cited administrative opinion directly conflicts with

Wilander. It considered jurisprudence that pre-dated both

the LHWCA and the Jones Act. Furthermore, it pre-

dated the 1972 amendments to the LHWCA, wherein Con-

gress clearly delineated the mutual exclusivity of the

Jones Act and the LHWCA by barring land-based mari-

time workers from asserting “unseaworthiness” claims.

Wilander, 111 S.Ct. at 813-14. Most importantly, that ad-

ministrative opinion did not consider that the phrase,

“master or member of a crew,” as used in the LHWCA

is the same as the term “seaman” as used in the Jones

Act. Wilander, 111 S.Ct. at 814, 817. Accordingly, that

administrative interpretation does not consider whether a

pilot has the “permanent connection to a vessel” needed

to come within this exclusion. That administrative inter-

pretation directly conflicts with the Jones Act, the

LHWCA, and this Court’s interpretation of those Acts

in Wilander, and is not entitled to any deference.

Fourth, this case differs from Gizoni and would not

make a good companion case. In Gizoni, the injured party

was a ship repairman—a person specifically covered by

the language of the LHWCA—who performed much of

his work aboard work barges owned by his employer. 909

F.2d at 387. Gizoni asserted that since he performed a

substantial amount of his work aboard his employe’'s

work barges, he was a seaman. Jd. The district court

granted the motion for summary judgment brought by

Gizoni’s employer, finding that Gizoni was a worker cov-

ered by the LHWCA, and not by the Jones Act. Jd. The

Ninth Circuit reversed, finding that a jury question

existed regarding whether Gizoni was a seaman, despite

the fact that Gizoni’s employment as a ship repairer was

specifically covered by the LHWCA. Id., 909 F.2d at 387-

89. This Court granted a writ of certiorari limited to the

question whether employees in occupations specifically cov-

ered by the express language of LHWEA are entitled to

a jury trial to determine their status as seamen. 59

U.S.L.W. 3577.

18

This Court appropriately granted a writ in the Gizoni

case, because that case cannot clearly be decided under

the principles announced in the Wilander decision. Gizoni

was a ship repair employee expressly covered by the

LHWCA. Nevertheless, because Gizoni performed much

of his work aboard vessels owned or controlled by his em-

ployer, he arguably had the permanent connection to a

vessel required by Wilander to qualify as a “seaman.”

Thus, this Court correctly granted a writ.to clarify the

status of such workers.

The present case, however, is governed squarely by

principles announced by Wilander and agreed upon by the

circuits. Unlike Gizoni, decedent Bach clearly cannot be

considered a seaman, because the evidence in this case

demonstrates that decedent had no permanent connection

to any vessel or fleet of vessels. Decedent Bach was a

self-employed river port pilot having no permanent con-

nection to any vessel. Thus, decedent squarely fits within

the class of maritime workers not covered by the defini-

tion of seaman recognized in Wilander. While the writ

grant in Gizoni was necessary to clarify the status of a

large group of workers not clearly defined by the Wilan-

der decision, granting a writ in this case would not aid in

the development of the law.

Finally, sound policy reasons dictate that this Court

make no exceptions to the qualifications for seaman’s

status. As the Fifth Circuit correctly noted, several

classes of workers who more clearly face the perils of the

open sea than did decedent have been denied status as

seamen, because they did not meet the seaman’s status re-

quirements. 920 F.2d at 325. Workers, such as those who

navigate a vessel on the open seas on sea trials, who work

aboard fixed structures on the open sea, and who service

vessels at sea owned by various owners, have not been

considered seamen, because they lack the permanent con-

nection to a vessel or fleet of vessels that seaman’s status

requires. Jd. Making an exception for river port pilots

will open the door to classifying innumerable offshore and

inland maritime workers who also lack “‘a permanent con-

19

nection to a vessel” as seamen. To make the exception

urged by petitioners is to “muddy the waters” clarified

by Wilander as to the qualifications of seaman’s status.

In Wilander, this Court resolved the principal dispute

between the circuits regarding the qualifications for sea-

man’s status. The decision of the Fifth Circuit clearly is

consistent with the principles announced in that case.

This Court should deny petitioners’ request for a writ of

certiorari.

Ill. RESPONDENTS’ ENTITLEMENT TO SUMMARY

JUDGMENT ON CAUSATION AND BURDEN OF

PROOF GROUNDS RENDERS THIS CASE INAP-

PROPRIATE FOR REVIEW

Finally, this case is inappropriate for review, because

the facts obfuscate the legal issue upon which petitioners

seek review. This case is not an appropriate one for de-

ciding whether to create an exception to the clear sea-

man’s status requirements, because respondents were en-

titled to summary judgment whether or not decedent was

a seaman.

Whether a plaintiff’s claim is under the Jones Act or

the general maritime law, a plaintiff seeking recovery

must prove by a preponderance of the evidence that the

fault of the defendant caused the plaintiff’s purported in-

jury. E.q., Diebold v. Moore McCormack Bulk Transport

Lines, 805 F.2d 55, 58 (2d Cir. 1986) (recognizing that

plaintiff must prove the elements of his Jones Act case

by a preponderance of the evidence); Snyder v. Whit-

taker Corp., 839 F.2d 1085, 1092 (5th Cir. 1988) (noting

that both under Texas law and the Jones Act, plaintiff

must prove his case by a preponderance of the evidence) ;

Litherland v. Petrolane Offshore Const. Services, 546 F.2d

129, 132 (5th Cir. 1977) (affirming a jury instruction

requiring plaintiff to prove the elements of his Jones Act

case by a preponderance of the evidence); Matter of

Hechinger, 890 F.2d 202, 208 (9th Cir. 1989), cert. de-

nied sub nom. Caskie v. Hechinger, 111 S.Ct. 136 (1990)

(citing Litherland and recognizing that plaintiff's burden

20

under the Jones Act is to prove his case by a preponder-

ance of the evidence).

Furthermore, summary judgment is appropriate where

the uncontradicted evidence demonstrates that plaintiff is

unable to prove his case by a preponderance of the evi-

dence. Celotex, cited above, 477 U.S. at 322-23. The mere

existence cf a “metaphysical doubt” as to material facts

does not preclude summary judgment. Matsushita Elec-

tric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). A dispute is not genuine so as to render

summary judgment inappropriate unless the evidence is

such that a reasonable fact finder could return a verdict

on the issue for either party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-50 (1986).

In this case, petitioners alleged that defendants were

negligent in two respects: (1) in failing to administer

CPR to decedent immediately upon his collapse, and (2)

in allegedly requiring him to climb a pilot ladder for a

distance greater than allowed by applicable regulations.

However, the undisputed evidence, summarized above,

plainly demonstrated that petitioners could not prove

either claim by a preponderance of the evidence. Peti-

tioners’ own expert physician, Dr. John H. Phillips, the

head of cardiology at Tulane University Medical Center,

testified tnat the cause of decedent’s death was his hard-

ening of the arteries—arteries that were 90 to 99 percent

blocked—not any negligence of the vessel. Dr. Phillips

placed decedent’s chances of dying from his heart condi-

tion, even if CPR and electrical defibrillation had been ad-

ministered immediately, as greater than 85 percent, with

his chances of survival possibly in the 0 to 10 percent

range. Dr. Phillips further testified that decedent’s

chances of dying were just as likely whether he was

climbing aboard a ship, sleeping, or sitting in his living

room while watching television. Thus, petitioners could

not meet their burden of proving by a preponderance of

the evidence that any alleged negligence caused decedent’s

death. Furthermore, petitioners’ pilot ladder claim totally

lacked merit, because the distance decedent climbed up

ee

21

the ladder was well within the distance allowed by ap-

plicable maritime regulations. See Bach, 920 F.2d at

327; Petitioners’ Appendix, A-8 to A-9.

Because petitioners could not prove their case by a pre-

ponderance of the evidence, respondents clearly were en-

titled to summary judgment. Because respondents were en-

titled to summary judgment whether or not decedent was

a seaman, this case is not an appropriate case to consider

whether an exception should be made to the seaman’s sta-

tus test announcéd in Wilander.

CONCLUSION

The decision of the Fifth Circuit is consistent with the

requirements for seaman’s status enunciated by this Court

in Wilander. Furthermore, this case is inappropriate for

review, because respondents were entitled to judgment,

whether or not petitioners’ decedent was a seaman. For

the reasons discussed above, respondents, Trident Steam-

ship Company, Inc. and Kaiser Aluminum and Chemical

Corporation, respectfully submit that this Court should

deny petitioners’ petition for a writ of certiorari.

Respectfully submitted,

ROBERT H. MURPHY

Counsel of Record

KENNETH J. SERVAY

THOMAS D. FORBES

CHAFFE, MCCALL, PHILLIPS,

TOLER & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

Attorneys for Respondents,

Trident Steamship Company,

Inc. and Kaiser Aluminum

May 8, 1991 and Chemical Corporation

APPENDIX

ea a i

la

APPENDIX

R.S. 31:995. Association of river port pilots

The said river port pilots may form themselves into an

association as to them may seem fit, not in conflict with

law, or with the rules and regulations of the river port

pilot commissioners, but nothing herein shall affect any

association presently existing.

R.S. 34:996. Operating territory

A. The river port pilots shall have the exclusive right to

pilot vessels on the Mississippi River between New Or-

leans, Louisiana and Pilottown, Louisiana and within

the Port of New Orleans between Southport and Meraux-

ville; within the Industrial Canal, between the Mississippi

River to and including Lake Pontchartrain; within the

Intracoastal Canal, between the Industrial Canal and the

turning basin at Michoud, inclusive; also for the Missis

sippi River Gulf Outlet between the Industrial Cana! and

Mile 28.3, the Gulf Intracoastal Waterway from the

Louisiana-Mississippi state line to the Mississippi River

Gulf Outlet, including Michoud Slip and Michoud Canal,

Chef Pass, Algiers Cutoff, and the Harvey Canal; the

Venice Jump within six and one-half miles of the Mis-

sissippi River, Bayou Sauvage; and Bayou Liberty.

B. However, nothing herein contained shall prevent an

exchange of river port pilots at what is known as ‘‘Quar-

antine Anchorage” or “The Point” or “General Anchor-

age” between the river port pilots herein named and the

- pilots engaged in the piloting of vessels above Southport,

nor shall anything herein provided prevent pilots engag

ing in piloting vessels above Southport from ending or

beginning the pilotage from any wharf or “The Point” or

“General Anchorage” in the Harbor of New Orleans.

2a

R.S. 34:997. Pilotage fees; vessel subject to pilotage

A. The river port pilots shall be entitled to ask for and

to receive a fee for their pilotage services.

B. The fees for pilotage services shail be established in

accordance with R.S. 34:1121, et seq.

C. The river port pilots shall also be entitled to enter into

agreements with the masters, owners, or their agents, of

ships and vessels, not otherwise subject to compulsory

pilotage as provided by these statutes, for special services,

boats, equipment, transportation, and other necessary

fees at such rates and for such sums as may be agreed

between them, but not to exceed those rates established

in accordance with R.S. 34:1121, ef seq.

D. All vessels shall employ a river port pilot when navi-

gating the operating territory described in this Subpart

except those vessels exempted by the laws of the United

States or vessels of one hundred gross tons or less.

Ek. In case of refusal to take such river port pilot, the

master, owner, agent, or consignee of any vessel required

to employ a river port pilot shall pay the established pilot

fee as if a river port pilot had been employed.

R.S. 34:1002. Violations and penalties

Anyone attempting to exercise the functions herein vested

in the said river port pilots, who has not been commis-

sioned by the governor, shall be fined not less than one

thousand five hundred dollars, nor more than five thou-

sand dollars, or imprisoned not less than thirty days, nor

more than four months, or both, at the discretion of the

court in whose jurisdiction the offense is committed.

R.S. 34:1002.1. Employing pilot without a state commis-

sion; penalties

A. No master, owner, or agent of a vessel required under

this Subpart to take a state commissioned river port pilot

3a

shall perform the duties of a river port pilot nor employ

a person who is not a state commissioned river port pilot.

B. Whoever violates this Section shall be fined not less

than one thousand five hundred dollars nor more than

five thousand dollars, or imprisoned for not more than six

months, or both.

RS. 34:1009. Employing pilot without a commission; li-

ability of vessel, master, and owner

A vessel which is required to use a river port pilot pur-

suant to this Subpart and fails to do so when a river port

pilot offers his services, the vessel, its captain, and owners

shall be liable for a civil penalty and shall forfeit to the

state of Louisiana the sum of fifteen thousand dollars,

with privilege on the vessel, to be recovered before any

court of competent jurisdiction. An action for forfeiture

under this Section may be brought by the attorney gen-

eral of the state of Louisiana or by the Board of River

Port Pilot Commissioners. If a judgment is obtained here-

under, the court shall include in its judgment an award

for reasonable attorney fees and costs incurred in connec-

tion with the prosecution of such action.

R.S. 34:1121. Pilotage fee commissions; composition

A. A separate pilotage fee commission shall exist rela-

tive to each pilot association established and operating

under state law. Each pilotage fee commission shall be

nominally designated by the name of the association to

which it relates, followed by “Fee Commission”.

* x * *

R.S. 34:1122. Fees and charges; adjudication of disputes

A. (1) Each fee commission shal] have exclusive au-

thority to fix and establish reasonable and just fees and

rates for:

(a) VPilotage service to ships and vessels.

* * * *