Petition for Writ of Certiorari — Pizzitolo v. Electro-Coal Transfer Corp.
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87 -737~
IN THE |
SUPREME COURT OF THE UNITED STATE
OCTOBER TERM, 19
Suprame Court US,
FIL BD
S
NOv 3 8
JOSEPH F. SPANIOL, JR,
CLERK
NO. A-256
NICHOLAS R. PIZZITOLO,
Petitioner
~ VERSUS -
ELECTRO-COAL TRANSFER CORPORATION and
NATIONAL UNION FIRE INSURANCE COMPANY,
Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
FERDINAND J. KLEPPNER
Attorney for Petition
er
Suite 200, 2400 Edenborn
Avenue
Metairie, Louisiana 7
(504) 831-2244
0001
"BEST AVAILABLE COPY )
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 19
NO. A-256
NICHOLAS R. PIZZITOIO,
Petitioner
- VERSUS -
ELECTRO-COAL TRANSFER CORPORATION,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
FERDINAND J. KLEPPNER
Attorney for Petitioner
Suite 200, 2400 Edenborn
Avenue
Metairie, Louisiana 70001
(504) 831-2244
QUESTIONS PRESENTED FOR REVIEW
i. Whether the Court of Appeals
for the Fifth Circuit properly
interpreted the Longshore and Harbor
Workers Compensation Act (LHWCA) in
holding that the LHWCA unqualifiedly
bars any injured plaintiff who repairs
ships from eligibility as a member of the
ship's crew under any and all
circumstances, as a matter of law,
eliminating any jury determination of
whether the "member of a ship's crew"
exception applies, despite repeated
declarations by the United States Supreme
Court that a determination of crew member
status must be entrusted to a jury.
a Whether a properly instructed
jury's unanimous verdict that the
petitioner, an electrician who repaired
and maintained the electrical systems of
an identifiable fleet of vessels in
navigation, was a Jones Act seaman, may
properly be set aside because the Trial
Judge, although a reasonable evidentiary
basis existed for the jury's finding,
disagreed with the jury's conclusion on
the facts that petitioner was more or
less permanently assigned to an
identifiable fleet of vessels.
site
LIST OF ALL PARTIES
NICHOLAS R. PIZZITOLO-
Plaintiff in original
proceeding, Petitioner before
this Court.
ELECTRO-COAL TRANSFER
CORPORATION - Defendant in
original proceeding, Respondent
before this Court.
NATIONAL UNION FIRE INSURANCE
COMPANY - Intervenor in
original proceeding.
-iii-
TABLE OF CONTENTS
Page
Questions Presented
a « < «© 6 6 e @ 6S. i,ii
List of All Parties ...... iii
Table of Contents ....... iv
Table of Authorities ..... vii
Opinions Below ........ 1
Jurisdiction and Grounds
for Petition oe ee ae 3
Statutes and Ordinances
1) 33 U.S.C. Section 902(3). 4
2) 46 U.S.C. Section 688(a). 5
Statement of the Case ..... 7
a 15
Comelusion . «ec eccceee 38
Certificate of Service .... 41
Appendix
Appendix "A": Opinion, U.S.
Court of Appeals, Fifth
ne © 6 6 4 ¢ «© 6 « «© « « A-1
Appendix "B": Judgment and
‘ting F :
Jud t Notwithst ii
the Verdict, U.S. District
Court, Eastern District of
Louisiana, Honorable A. J.
McNamara, U.S. District
Judge
Judgment ..-+-+-+++ ++ + >
Order ar Or i ee i oe ee
Appendix "C": Denial ~_
Defendant's Motion for
, U.S.
District Court, Eastern
District of Louisiana,
Minute Entry, September 26,
1984 — oo oo a oe oe oe
Appendix @p* ; Denial - Pe-
n
Banc, United States Court of
Appeals, Fifth Circuit ..- .-
Appendix "E": Trial Court's
Ruling on Defendant's Motion
to Amend Order Granting
Judgment Notwithstanding the
Verdict, U.S. District Court,
Eastern District of
Louisiana, Minute Entry,
January 15, 1986 ....-.--
Appendix "F": Jury Verdict,
U.S. District Court, Eastern
-V—-
District of Louisiana,
Minute Entry, Interrogatories
to the Jury
ae ae ae ee a F-1
Interrogatories to
I ee a F-4
Appendix "G": Trial Trans-
cript Excerpts:
Testimony of Nicholas R.
Pizzitolo eo @ © © © © @ G-1
Testimony of Jack Anthony
White es eeelare 66 «_« G-43
Testimony of Joe David
Rice “a G-56
Testimony of Jack H.
teh eh i: eb ee « G-67
Testimony of Manuel Paul
a ee G-81
Appendix "H": Order Extend-
ing Time to File Petition for
Writ of Certiorari, Supreme
Court of the United States. . H-1
-yi-
F ORITIES
Page
CASES:
Vv. Vv (@)
Inc., 781 F.2d 1067
(S Cir. 1986) .. 2 2-ecee- 36,37
Boeing v. Shipman, 411
F.2d 365 (5 Cir. 1969). .... 23,24
Butler v. Whiteman, 363
U.S. 271, 78 S.Ct. 734 (1958) . 20,38
Vv k
Ferry Company, 342 U.S. 187,
972 B.Ge. 216 (1088) . 2 2 2 20,38
Gi Vv s Company,
350 U.S. 879, 76 S.Ct. 141
(1955) pe a eee 20,38
Grimes v. Raymond Concrete
Pile Company, 356 U.S. 252,
78 S.Ct. 687 (1958) ...... 20,38
Kimble v. Noble Drilling
Corporation, 416 F.2d 847
(5 Cir. 1969) Oe ae 38
Norton v. Warner Company,
321 U.S. 565, 64 S.Ct. 747
(1943) FS ea
-vii-
:
:
——————————— 6“ CC rr rr
Offshore Company v. Robison,
266 F.2d 769 (5 Cir. 1959). . 23,24,33
Pizzitolo v. Electro-Coal
Transfer Corporation, 812 F.2d
Dee em Get. Beets « ea ws we BO
22
Senko v. LaCrosse Dredging
Corporation, 352 U.S. 370, 77
S.Ct. 415 (1957) . + * «0 = @epgenpen
34,38
South Chicago Coal and Dock
Company v. Bassett, 309 U.S.
251, 60 S.Ct. 544 (1940). . . 17,34
Wallace v. Oceaneering Inter-
national, 727 F.2d 427 (5
i Cs <4 5 cea oe ae
STATUTES AND ORDINANCES:
28 U.S.C. 1254(1) ;
+.
”
e
.
a
es)
28 U.S.C. 1331 ee trae 14
33 U.S.C. 902(3) ete rege 4,28
ee @.8.C.. SORES) 08) . . . « « 9,15
46 U.S.C. 688(a) SG ee Steer 5,7,14
P.L. 92-576 b sivae Pacseaer 19
—-viii-
CONGRESSIONAL REPORTS:
House Report (Education and
Labor Oommitthee) No. 92-1441,
Sept. 25, 1972 [to accompany
H.R. 12006 (Longshoremen's and
Harbor Workers' Compensation
Act Amendments of 1972)],
Cong. Record Vol. 118 (1972)
in P.L. 92-576, 1972 U.S. Code
Cong. and Adm. News pp. 4698-.
4820 “Sf ok Me ae Se Se ne es ee ee 18 ,i9
LAW REVIEW ARTICLES:
Robertson, "Current Problems
in Seaman's Remedies:
Seaman Status, Relationship
Between Jones Act and LHWCA,
and Unseaworthiness Actions
By Workers Not Covered by
LHWCA", 45 LA. LAW REV. 875
(1985) ye ae ae Se ke eS 17
=e
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 19
NO.: A-256
NICHOLAS R. PIZZITOLO,
Petitioner
-VERSUS-
ELECTRO-COAL TRANSFER CORPORATION,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL, FIFTH CIRCUIT
Petitioner, NICHOLAS R. PIZZITOLO,
respectfully seeks certiorari to the
Court of Appeal for the Fifth Circuit for
review of that Court's affirmation of a
Judgment of the District Court granting a
Judgment Notwithstanding the Verdict
reversing a unanimous verdict of the
trial jury that petitioner was a Jones
Act Seaman when injured.
OPINIONS BELOW
1) Decision of the United States
Court of Appeal for the Fifth Circuit,
Pizzitolo vs. Electro-Coal Transfer
Corporation, 812 F.2d 977 (5 Cir. 1987).
(Appendix "A").
2) Judgments and Reasons therefor
granting a Judgment Notwithstanding of
the Verdict by the Judge of Division "D",
United States District Court for the
Eastern District of Louisiana, dated
December 11, 1985. (Appendix "B").
3) Unanimous verdict of the Trial
Jury that petitioner was a Jones Act
Seaman; that his injuries were caused by
the negligence of respondent, and, that
petitioner was not contributorily
negligent. (Appendix "F").
JURISDICTION AND GROUNDS FOR PETITION
1) Jurisdiction of this Court to
review prior Judgments on Certiorari is
invoked under 28 U.S.C. 1254(1).
2) The Judgment of the Court of
Appeal for the Fifth Circuit sought to be
reviewed herein was dated March 20, 1987,
and a Petition for Rehearing and
Suggestion for Rehearing En Banc filed by
petitioner were denied by that court on
July 7, 1987.
3) The Trial Court's entry of
Judgment Notwithstanding of the Verdict
was dated December 11, 1985.
4) This Court granted a Motion for
Extension of Time within which to
petition for certiorari on September 29,
1987, extending the time for filing of
that petition to and including November
4, 1987.
STATUTES AND ORDINANCES
1) 33. U.S.C. Section 902(3)
Definitions:
(3) The term "employee"
means any person engaged in
maritime employment, including
any longshoreman or other
person engaged in longshoring
operations, and any harbor-
worker including a= ship
repairman, shipbuilder, and
ship-breaker, but such term
does not include --
(A) individuals employed
exclusively to perform office
ciericeli, secretarial,
security, or data processing
work;
(B) individuals employed by
a club, camp, recreational
operation, restaurant, museun,
or retail outlet;
(C) individuals employed by
a marina and who are not
engaged in construction,
replacement, or expansion of
such marina (except for routine
maintenance) ;
(D) individuals who (i) are
employed by suppliers,
transporters, or vendors, (ii)
are temporarily doing business
on the premises of an employer
-4-
described in paragraph (4), and
(iii) are not engaged in work
normally performed by employees
of that employer under this
chapter;
(E) acquaculture workers;
(F) individuals employed to
build, repair, or dismantle any
recreational vessel under
sixty-five feet in length;
(G) a master or member of a
crew of any vessel; or
(H) any person engaged by a
master to load or unload or
repair any small vessel under
eighteen tons net;
if individuals described in clauses (A)
through (F) are subject to coverage under
a State workers' compensation law.
| 2) 46 U.S.C. Section 688(a):
Any seaman who shall suffer
personal injury in the course
| of his employment may, at his
election, maintain an action
for damages at law, with the
right of trial by jury, and in
such action all statutes of the
United States modifying or
extending the common-law right
or remedy in cases of personal
injury to railway employees
shall apply; and in case of
| death of any seaman as a result
-5-
of any such personal injury the
personal representative of such
seaman may maintain an action
for damages at law with the
right of trial by jury, and in
such action all statutes of the
United States conferring or
regulating the right of action
for death in the case of
railway employees shall be
applicable. Jurisdiction in
such actions shall be under the
court of the district in which
the defendant employer resides
or in which his. principal
office is located.
STATEMENT OF THE CASE
Petitioner, an employee of ELECTRO-
COAL TRANSFER CORPORATION, sued under the
Jones Act (46 U.S.C. 688(a)) for bodily
injuries sustained when he fell from a
scaffolding. Petitioner was an
electrician.
NATIONAL UNION FIRE INSURANCE
COMPANY intervened seeking recovery of
compensation benefits paid to petitioner,
should petitioner be decreed to have been
a seaman at the time of his accident.
On August 29, 1984, respondent
(defendant below) sought Summary Judgment
to dismiss the complaint. The Trial
Judge denied that motion.
At a trial on the merits, limited to
the issue of liability, the jury was
charged to reach conclusions on the
following issues: (1) whether Nicholas
_ Po
Pizzitolo was a seaman; (2) whether
Electro-Coal Transfer Corporation was
negligent; and (3) whether Nicholas
Pizzitolo was contributorily negligent.
Following the trial, but before a jury
verdict, the defendant motioned for a
directed verdict. The Trial Judge
declined to act on that motion and
allowed the matter to go to the jury.
The jury rendered a unanimous
verdict in favor of plaintiff and against
defendant, finding that plaintiff was a
seaman, that the defendant was negligent,
and that plaintiff was not contributorily
negligent. Subsequent thereto, on motion
of the defendant, the Trial Court
reversed the jury's verdict and entered a
Judgment Notwithstanding the Verdict in
favor of ELECTRO-COAL TRANSFER
CORPORATION dismissing Pizzitolo's
Sat = tet
complaint at his cost. (A subsequently
filed Motion to Amend Order and Reasons
for Judgment seeking a decision of the
Trial Judge on the issue of negligence,
filed by the defendant was denied by the
Trial Court).
The United States Court of Appeal
for the Fifth Circuit affirmed the
decision of the Trial Judge and held that
“ship repairers", in all circumstances,
are ineligible for consideration as
members of a crew of a vessel. The court
effectively ruled that regardless of the
particular circumstances of a case the
crew member status determination required
as a result of the exception found in
Section 902(3)(G) of the Longshore and
Harbor Workers Act is no longer
applicable in cases where an individual
is merely named a “ship repairman" and,
-9-
therefore, crew member status may not be
submitted to a jury.
NICHOLAS PIZZITOLO, a senior
electrician, with his crew of
electricians, were the only personnel
charged with the maintenance and repair
of all electrical systems aboard a
specific identifiable fleet of
electrically dependent harbor tugs owned
and operated by respondent, ELECTRO-COAL
TRANSFER CORPORATION. (Appendix G-1
through G-9; G-16; G-43 through G-45;
G-50; G-56 through G-57; G-64 through
G-65; G-67 through G-70; | G-82; G-96
1 over Pizzitolo's strenuous
objection, the Court of Appeals
apparently allowed Electro-Coal to
"cross-appeal" the district court's
denial of its Motions for Directed
Verdict and JNOV on the negligence issue.
Pizzitolo, 812 F.2d 977, 979.
-10-
through G-97). In addition to the sole
and exclusive responsibility for
electrical maintenance and repair of the
harbor tugs, Pizzitolo and his crew were
solely and exclusively responsible for
the electrical work required _and
maintenance of electrical systems aboard
specifically identifiable river tugs
known as "big white boats" when they were
operating in the New Orleans area. In
addition, he and his electrical crew had
sole and exclusive responsibility for all
electrical repairs and maintenance of
electrical systems aboard a specific and
identifiable fleet of barges and ocean-
going barges and tugs owned and operated
by respondent. (Appendix G-12 through G-
14; G-16 through G-23; G-47 through G-
49; G-53 through G-54; G-57 through G-
64; G-68 through G-69; G-72 through G-
-llil-
76; G-98 through G-99).
Trial testimony established that
Pizzitolo and his electrical crew were
called upon to perform electrical repair
and maintenance aboard an additional
identifiable fleet of vessels owned by a
Sister corporation to Electro-Coal.
(Appendix G-72 through G-73).
The maintenance and repair of
electrical systems aboard the Electro-
Coal fleet was considered top priority
among all other electrical tasks which
petitioner was called upon to perform.
On occasions, these electricians,
including petitioner, ate their meals
aboard vessels upon which they were
working; they routinely were required to
perform maintenance and repair work while
vessels were under way. At all times the
electrical work performed by petitioner
-12-
and his crew was aboard vessels while
afloat and while they were, according to
traditional interpretations, in
navigation. (Appendix G-24 through G-27;
G-56 through G-57; G-67 through G-68;
G-70; G-74; G-76; G-92 through G-94).
Pizzitolo's work aboard the Electro-
Coal tugs and barges was similar to that
of the captains and deckhands’ who
operated these tugs and barges in that
all worked a specific shift, following
which they left the vessels to sleep and
eat at home. (Appendix G-38; G-55; G-
65 through G-66; G-95 through G-96).
On numerous occasions, a boat
captain would directly request that
Pizzitolo or one of his crew perform the
electrical work aboard his’ vessel.
(Appendix G-77 through G~-78). Pizzitolo
performed maintenance and repair work
-13-
Electro-Coal fleet on an average of eight
to ten hours per week throughout his
entire career with the company.
(Appendix G-31 through G-32). In one
particular year (1981), Pizzitolo worked
for a period of twenty-five to thirty
days aboard a floating barge and, in
addition, made trips thereafter for
maintenance and repair on that barge.
(Appendix G-34 through G-37).
The basis for jurisdiction of this
Jones Act (46 U.S.C. 688) matter in the
court of first instance, that is, the
United States District Court for the
Eastern District of Louisiana, was the
general federal question statute, 28
U.S.C. 1331.
-14-
ARGUMENT
This court should grant petitioner's
Request for a Writ of Certiorari to the
United States Court of Appeal for the
Fifth Circuit because that court has
interpreted the Longshore and Harbor
Workers Compensation Act (LHWCA) as
unqualifiedly barring any injured
plaintiff who repairs ships from
eligibility as a member of the ship's
crew under any and all circumstances,
without any preliminary factual
determination as to whether that
individual is a “member of the crew of
any vessel" within the meaning of 33
¥.8.C. 962 (3) (G). The Court of Appeal
declared that "ship repairers" are
unqualifiedly covered by the LHWCA and
they are, as a matter of law, ineligible
for consideration as seamen or members of
-15-
the crew of a vessel. The court added
that "even if he (petitioner) spent a
Substantial portion of his work time
aboard a recognized fleet of vessels
performing electrical repairs... he is
covered by the LHWCA and cannot qualify
as a seaman within the meaning of the
Jones Act." Pizzitolo v. Electro-Coal
Transfer Corporation, 812 F.2d 977, 983
(5 Cir. 1987).
Initially, the court must consider
that the matter before this court does
not invcolve an individual who has been
denied benefits under the Longshore and
Harbor Workers Compensation Act.
Instead, it involves an individual who,
from the outset, sought his remedy for
injuries under the Jones Act, as a
seaman. This court has long stressed a
policy of deference to the trier-of-
-16-
fact's findings on issues of crew member
status, and expressly indicated that it
was concerned with LHWCA coverage, not
Jones Act coverage. Robertson, "Current
Problems in Seaman's Remedies: Seaman
Status, Relationship Between Jones Act
and LHWCA, and Unseaworthiness Actions by
Workers Not Covered by LHWCA", 45 La. Law
Rev. 875, 878 (1985); See also, South
Chicago Coal and Dock Company v. Bassett,
309 U.S. 251, 60 S.Ct. 544 (1940) and
Norton v. Warner Company, 321 U.S. 565,
64 S.Ct. 747 (1943).
The significance of this point is
that the Court of Appeals, in the
decision under challenge, has ignored and
virtually eliminated the LHWCA's "member
of a crew of any vessel" exception.
Instead, its analysis is confined to a
semantical distinction as to whether
-17-
petitioner's generic trade, which
involved electrical repairs to vessels in
navigation, constitutes an "occupation"
covered exclusively under the Longshore
and Harbor Workers Act. It is submitted
to this court that the Court of Appeals’
analysis, begs the question. The explicit
language of the Act itself establishes an
exception to coverage for "member of a
crew of any vessel". Nothing in the
act's legislative history suggests that
Congress intended this exception tec be
confined to an analysis only in
particular factual circumstances. With
| respect to the 1972 amendment to LHWCA,
House Report No. 92-1441's section-by-
section description of Committee
Amendment to the Bill indicates that the
new subsection retained the crew member's
exclusion and merely states that the term
-18-
"employee" includes any longshoreman or
other person engaged in longshoring
operations, and any harbor workers
(including any ship repairman,
shipbuilder, and shipbreaker). P.L. 92-
576, 1972 U.S. Code Cong. and Adm. News,
p. 4711. Fundamental logic requires,
therefore, that a determination be
reached initially as to whether the party
under consideration falls within the
exception. Obviously, if he does, no
further analysis of the Longshore and
Harbor Workers Compensation Act would be
in order.
The landmark decisions of this court
reveal its clear direction with regard to
the issue of crew member status to
include the following principles:
(1) It is proper to submit the
issue te the jury in almost all cases,
-19-
and,
(2) A worker should not be excluded
from crew member status as a matter of
law if he had a permanent connection with
or performed a significant amount of work
aboard a vessel in navigation and his
duties contributed to the vessel's
operation, maintenance, or mission.
Desper v. Starved Rock Ferry Company, 342
U.S. 187, 72 S.Ct. 216 (1952); Norton v.
Warner Company, 321 U.S. 565, 64 S.Ct.
747 (1943); Senko v. LaCrosse Dredging
Corporation, 352 U.S. 370, 77 S.Ct. 415
(1957); Gianfala v. Texas Company, 350
U.S. 879, 76 S.Ct. 141 (1955); Grimes v.
Raymond Concrete Piling Company, 356 U.S.
252, 78 §&.Ct. 687 (1958); Butler v.
Whiteman, 356 U.S. 271, 78 S.Ct. 734
(1958).
In direct contradiction of these
-20-
requirements as expressed by this court,
the Court of Appeals for the Fifth
Circuit has interpreted the Longshore
Harbor Workers Compensation Act to
preclude altogether a jury determination
of crew member status for an injured
individual whose occupation is’ labeled
"repairman".
The inescapable conclusion resulting
from the appellate court's reasoning is
that a repairman (such as an electrician,
motorman, mechanic, etc.) whose duties
involve the repair of ships in
navigation, even if they are aboard those
ships as part of the ship's complement,
over extended voyages, must be
unqualifiedly covered under the
Longshore and Harbor Workers Compensation
Act and whether or not he is "a crew
member of any vessel" may never be
-21-
submitted to the trier of facts for
determination.
Petitioner suggests to this court
that the Fifth Circuit Court of Appeal
has grievously misinterpreted the
Longshore and Harbor Workers Compensation
AGT. The extent of that
misinterpretation is glaringly
illustrated in the following language:
The only work Pizzitolo
performed aboard vessels was
electrical repair work. Even
if he spent aé_=e substantial
portion of his work time aboard
a recognized fleet of vessels
performing electrical repairs,
for reasons above he is covered
by the LHWCA and cannot qualify
as a seaman within the meaning
of the Jones Act. Pizzitolo,
812 F.2d 977, 983.
The appellate court has declared,
therefore, that henceforth a factual
determination of seaman status in a
matter in which a plaintiff seeks
benefits under the Jones Act will be
-22-
eliminated for any petitioner whose work
involves electrical repairs to a vessel.
In the case before the court, the
properly instructed jury's enesinous
verdict that petitioner, an electrician,
was a Jones Act seaman, was improperly
set aside because the Trial Judge
disagreed with the jury's conclusion on
the facts. A review of those facts
reveals that a reasonable jury could
arrive at the verdict which was reached
in this case. A reasonable evidentiary
basis supported the jury's conclusion.
Wallace v. Oceaneering International, 727
F.2d 427, 432 (5 Cir. 1984); Boeing v.
2 It is important to note that the
Court of Appeals completely refused to
comment on Mr. Pizzitolo's permanent
assignment to a fleet of vessels in
navigation, the prong of the Robison test
which plaintiff argued in his briefs and
in oral argument.
-23-
Shipman, 411 F.2d 365, 370 (5 Cir. 1969)
(en banc).
The Court of Appeals for the Fifth
Circuit, in a landmark case, Offshore
Company _v. Robison, 266 F.2d 769, 779 (5
Cir. 1959), established the test for
determining seaman/crew member status.
This test has become a model in other
circuits and has apparently been approved
by this court. Known as the "two prong"
test, the court concluded that an
evidentiary basis for a Jones Act seaman
determination to go to a jury exists if:
(1) there is evidence that the injured
workman was assigned permanently to a
vessel or fleet of vessels or performed a
substantial part of his work on the
vessel; and (2) his work or duties
contributed to the function of the vessel
or to the accomplishment of its mission
-24-
eters ini ieienii
or to the operation or welfare of the
vessel in terms of its maintenance during
movement or during anchorage for future
trips. The Pizzitolo jury was fully
instructed in accordance with the
criteria outlined, and no substantial
objections to those instructions were
offered.
The evidence presented at trial is
clear to the effect that Nicholas
Pizzitolo was regularly and routinely
assigned to a specific and identifiable
fleet of harbor tugs for the purpose of
maintenance and repair of the electrical
systems of those vessels. (Appendix G-1
through G-9; G-16; G-43 through G~-45;
G-50; G-56 through G-57; G-64 through
G-65; G-67 through G~-70; G-82; G-96
through G-97). Petitioner and his crew
solely and exclusively maintained the
-25-
electrical equipment on the harbor boats
and on the river tugs when they were in
the New Orleans area. (Appendix G-3
through G-4; G-16 through G-17; G-50;
G-64 through G-66). Additionally, he and
his electrical crew solely and
exclusively maintained the electrical
Systems aboard respondent's barges.
(Appendix G-18 through G-22). Each and
every one of these vessels and barges was
named for the record. (Appendix G-2; G-
12; G-17 through G-18; G-48 through G-
49; G-51; G-53;3 G-56; G-59; G-68;
G-72 through G-73; G-82; G-97). In
addition, petitioner was frequently
assigned to maintain and repair
electrical systems aboard vessels owned
by respondent's sister companies.
(Appendix G-57 through G-59; G-72
through G-73).
-26-
Petitioner's work was not incidental
and sporadic. Instead, it was essential
to the functioning of the vessels to
which he was assigned. (Appendix G-3
through G-9; G-68 through G-70). The
harbor tugs especially were "totally
electrically dependent". (Appendix G-3
‘through G-9). Moreover, the work which
petitioner performed was not an isolated
portion of his total work history with
respondent corporation. Instead, it was
consistent throughout his entire twelve
year employment history with the company.
(Appendix G-7 through G-9).
Unlike a dry dock ship repairman for
whom the LHWCA was fashioned to protect,
Mr. Pizzitolo faced the hazards and
perils of the sea as he performed his
electrical work abroad Electro-Coal's
fleet of vessels. It was incorrect to
=-27=
Characterize Mr. Pizzitolo as a "ship
repairman" as envisioned by Congress in
its definition of "employee" in the
LHWCA. See 33 U.S.C. 902(3). All of
the vessels to which petitioner was
assigned for electrical purposes were
owned either by Electro-Coal Transfer
Corporation (respondent), or were
operated by one of respondent's sister
companies. This fact was clearly
established throughout the testimony of
Mr. Pizzitolo and that of other witnesses
and was never contradicted by any defense
witness. (Appendix G-1 through G-2; G-
12 through G-13; G-17 through G-18; G-
47 through G-54; G-68; G-72 through G-
73; G-82; G-97 through G-98).
The electrical systems upon which
petitioner and his crew worked involved
essential items, without which the
-28-
vessels could not function. (See e.g.
Appendix G-69). These included
equipment such as_ wenches, lighting,
generators, fuel measurement devices,
sensing units and starters for diesel
engines. (Appendix G-1 through G-2; G-
28 through G-30; G-82 through G-92). It
is especially significant to note that
the policy of Electro-Coal was that the
vessels were "top priority" and their
repair and maintenance took precedence
over all other electrical tasks required
of the crew. (Appendix G-24 through G-
26). No other personnel assigned to
the harbor tugs or the barges or, in
fact, to the river tugs, were charged
with the repair and maintenance of
electrical systems. (Appendix G-22
through G-23; G-50).
Petitioner's regular duties required
-29-
that he spend whatever time was necessary
to repair and maintain the vessels!
electrical systems. There were times
when these duties required that he spend
a series of three or four days and, on
occasion, to eat meals aboard vessels.
(Appendix G-26 through G-27; G-66; G-
76). In addition, Mr. Pizzitolo
testified that he spent as much as two
weeks aboard a series of vessels in
maintaining and improving their
electrical systems. On one vessel, in
particular, "CARGO ONE", Pizzitolo spent
twenty-five to thirty days installing
lighting. (Appendix G-32 through G-33).
Numerous times the master of a
vessel would call upon an electrician
directly to correct electrical problems.
(Appendix G-77 through G-78). Requests
for repair and maintenance of vessels in
-30-
question originated with the vessels’
master. (Appendix G-81). it 2s
signitioant that petitioner was required
routinely to perform his tasks aboard
these vessels while they were afloat
and/or while they were under way.
(Appendix G-57; G-70; G-79 through G-
80; G-92 through G-94). Thus, this
case does not involve the traditional or
classic ship repairer or shipbuilder
working in a dry dock setting. Instead,
petitioner was exposed to the hazards and
perils of the sea in the classic sense of
a seaman. (See, e.g. Appendix G-70
through G-71; G-79 through G-80).
Importantly, the master and deckhands
aboard the harbor and river vessels that
petitioner repaired and maintained, like
Mr. Pizzitolo, returned home in the
evenings and slept ashore. (Appendix G-
-31l-
55; G-65 through G-66; G-95 through G-
96). Thus, as in Senko v. LaCrosse
Dredging Corporation, Supra, the shift-
type characteristics of petitioner's
employment are not significant to his
status as a seaman. |
The jury's obvious conclusion that
the duties of Mr. Pizzitolo and his
electrical crew as the vessels'
electricians were part of their permanent
work assignment and contributed to the
ultimate operation of each of those
vessels was amply supported by the
evidence. (See, e.g. Appendix G-1
through G-2; G-6 through G-37; G-43
through G-52; G-53 through G-54; G-56
through G-64; G-64 through G-67; G-82
through G-94; G-96 through G-99).
Electo-Coal's primary function of
transporting coal by water, coupled with
-32-
the sole and exclusive responsibility for
repair and maintenance of vital
electrical systems which belonged to
petitioner and his crew, unequivocally
demonstrate that the capacity of Mr.
Pizzitolo's employment as the electrical
crewman aboard harbor vessels, barges and
river tugs, contributed to the
functioning of those vessels, their
mission, their operation and their
welfare. Robison, 266 F.2d 769, 779.
This fact presents a reasonable
evidentiary basis for the jury's verdict
of seaman status which was based upon
petitioner's permanent assignment to an
identifiable fleet of vessels.
In discussing the role of the trier
of fact (in this case, the Sury), in
connection with a determination of seaman
status, in Senko v. LaCrosse _ Dredging
-33-
Corporation, Supra, this court declared
that:
Our holding there (in South
Chicago Company v. Bassett)
that the determination of
whether an injured person was a
‘member of a crew' is to be
left to the finder of fact
meant that juries have the same
discretion they have in finding
negligence or any other fact.
The essence of this discretion
is that a jury's decision is
final if it has a reasonable
basis, whether or not the
appellate court agrees with the
jury's estimate. (Parentheses
Added). Senko, 352 U.S. 370,
374.
In the instant proceeding, the Trial
Judge had been presented with a Motion
for Summary Judgment and a Motion for
Directed Verdict prior to submission of
this matter to a jury. In both
Situations, the Trial Judge declined to
rule in favor of the moving party, thus
suggesting that even in his opinion, a
reasonable factual basis for the exercise
-34-
of the jury's discretion had been
established. Nevertheless, following a
unanimous jury verdict in favor of
petitioner, the trial court attempted to
explain its reversal of that jury's
verdict with these significant words:
In this case, I find the
evidence is overwhelming that
the plaintiffs' duties aboard
the vessels were not
substantial but merely
transitory or sporadic and
plaintiff's relationship to the
vessels lacked the permanency
required by Robison. On those
occasions when the plaintiff
was required to work on a
vessel, he would be on the
vessel only for the purpose of
performing some specific
electrical repair and once the
repair was accomplished, the
plaintiff would leave the
vessel and return to the
electrical. shop for his next
assignment which, more often
than not, would be shoreside in
the plant and completely
unrelated to any vessel
activity. Accordingly,
plaintiff has failed to satisfy
the first prong of the Robison
test and, therefore, may not be
Classified as a seaman.
-35-
(Appendix B-6, B-7).
The Trial Judge's Reasons’ for
Judgment constitute more of an argument
for a position than reasons for judgment.
In short, these "reasons" are, in
reality, his argument for ae view
different from that of the jury. In
effect, the Trial Judge substituted his
views of the facts for those of the jury.
He became one of the jurors whose vote,
as a practical matter, outweighed all of
the votes of the other jurors. This
court has repeatedly rejected that
approach to the determination of seaman
status.
The Fifth Circuit's own recognition
of the durability of the Robison test
appears in its opinion in Barrett v.
Chevron, USA, Inc., 781 F.2d 1067 (5
Cir. 1986). In an analysis, the Barrett
-36-
court declared:
These varying formulations
reflect the principle that the
permanent-attachment aspect of
the crew member status
determination, like the status
determination as a whole, is an
inherently factual question,
and, as our cases since Robison
make clear, it is generally a
question for the fact-finder...
In most cases, the facts and
inferences to be drawn from
them may lead to either
decision by the factfinder, for
the Robison test is inherently
factual, and, like all
applications of a legal
standard to widely-varying
factual situations, may
inevitably result in some
inconsistent determination of
status. The Supreme Court,
which Robison followed, accepts
these inconsistencies. The
Supreme Court has signalled no
disapproval of Robison and we
continue to follow it.
Barrett, 781 F.2d 1067, 1074.
It is submitted that the question
before the court is not whether the
facts, as presented, constitute Mr.
Pizzitolo as a seaman, but wheth the
suppo ju indi t he is one.
-37-
See, Kimble Vv. Nobile Driiling
Corporation, 416 F.2d 847, 849 (5 Cir.
1969). As in Desper, Norton, Senko,
Gianfala, Grimes, and Butler, the present
case falls within the province of the
jury because there is evidence that
petitioner was assigned permanently to a
fleet of vessels for maintenance and
repair of their electrical systems and
equipment while those vessels were in
navigation. More than ample evidence
existed that petitioner's duties
contributed to the normal functioning of
these vessels.
CONCLUSION
The decision of the United States
Court of Appeal is far reaching in its
effects. The appellate court has
undertaken a novel and unfounded
-38-
interpretation of the seaman's exclusion
contained in the Longshore Harbor Workers
Compensation Act. That interpretation
constitutes, in effect, its removal for
determination from the trier of fact, the
jury. The Court of Appeal has cast a
narrow and concentrated gaze upon the
labels "shipbuilding" and "ship
repairing", excluding therefrom any
consideration of the facts and
circumstances surrounding the employment
activities of each petitioner before the
court. Thus, the Court of Appeals, has
made a broad and general pronouncement on
the law which, if allowed to stand, will
exclude from the protections afforded by
the law to seaman vast numbers of those
who regularly face the hazards and perils
of the sea while maintaining and
repairing electrical and mechanical
-39-
systems of vessels in navigation. It is
submitted to this court that such was not
the intention of the United States
Congress in its enactment of the
Longshore and Harbor Workers Compensation
Act nor of this court in interpreting the
Jones Act and the Longshore Harbor
Workers Compensation Act. For these
reasons, this court should grant
petitioner's request for certiorari to
the United States Court of Appeals for
the Fifth Circuit.
Respectfully submitted,
FERDINAND J. KLEPPNER
Attorney for Petitioner
Law Offices of FERDINAND
J. KLEPPNER
Suite 200, 2400 Edenborn
Avenue
Metairie, Louisiana 70001
(504) 831-2244
-40-
PER REESE RRB KRB KSEE RB BEE
CERTIFICATE OF SERVICE
I, Ferdinand J. Kleppner, Attorney
for Petitioner, do hereby certify that I
have served three copies of this Petition
for Writ of Certiorari, with accompanying
Appendices, upon each interested party
herein, this 4th day of November, 1987.
FERDINAND J. KLEPPNER
-41-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 19
NO. A-256
NICHOLAS R. PIZZITOLO,
Petitioner
- VERSUS -
ELECTRO-COAL TRANSFER CORPORATION,
Respondent.
APPENDIX FOR
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
FERDINAND J. KLEPPNER
Attorney for Petitioner
Suite 200, 2400 Edenborn
Avenue
Metairie, Louisiana 70001
(504) 831-2244
APPENDIX "A"
OPINION
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
[977]
PIZZITOLO v. ELECTRO-COAL TRANSFER CORP.
Cite as 812 F.2d 977 (5th Cir. 1987)
Nicholas R. PIZZITOLO,
Plaintiff-Appellant,
and
National Union Fire Insurance Company,
Intervenor-Appellant,
Vv.
ELECTRO-COAL TRANSFER CORPORATION,
Defendant-Appellee.
No. 86-3006.
United States Court of Appeals,
Fifth Circuit.
March 20, 1987.
Employee performing electrical
repair work aboard coal vessels filed
action against employer to recover
damages under Jones Act for personal
injuries sustained in course of
employment. The United States District
Court for the Eastern District of
Louisiana, A. J. McNamara, J., entered
judgment for employer notwithstanding
jury verdict for employee on issue of
seaman status, but refused to grant
directed verdict or judgment
notwithstanding verdict on issue of
sufficiency of evidence. On appeal and
cross appeal, the Court of Appeals, W.
Eugene Davis, Circuit Judge, held that
employee was not "seaman" under Jones Act
as he belonged to occupation enumerated
under Longshore and Harbor Workers’
Compensation Act and latter act was his
exclusive remedy even if he_ spent
substantial portion of work time aboard
vessels.
Affirmed.
1. Seamen 29(5.1)
Shipping 86(1)
Workers' Compensation 2085
A-2
Coverage under Jones Act and
Longshore and Harbor Workers'
Compensation Act is mutually exclusive,
and workman engaged in occupation for
which coverage is expressly provided
under latter is ineligible for benefits
under former. Jones Act, 46 U.S.C.A.
Section 688;. Longshore and Harbor
Workers' Compensation Act, Section 2(3),
as amended, 33 U.S.C.A. Section 902(3).
2- Seamen 2
Shipping 86(1)
Workers' Compensation 260
Employee who spent approximately 75
percent of his work time maintaining and
repairing shore-based electrical
machinery and other 25 percent of his
work time replacing or repairing
electrical equipment on vessels owned by
coal transfer company was not "seaman"
A-3
within meaning of Jones Act; even if
employee spent substantial portion of his
work time aboard vessels, he was engaged
in occupation enumerated under Longshore
and Harbor Workers' Compensation Act,
which was his exclusive remedy. Jones
Act, 46 U.S.C.A. Section 688; Longshore
and Harbor Workers' Compensation Act,
Section 2(3), as amended, 33 U.S.C.A.
Section 902(3).
See publication Words’) and
Phrases for other judicial
constructions and definitions.
Ferdinand J. Kleppner, Victor A.
Marsiglia, Jr., Metairie, lLa., for
plaintiff-appellant.
Lance S. Ostendorf, New Orleans,
La., for National Union Fire Ins. Co.
John oO. Charrier, Jr., Jeanmarie
A-4
LoCoco, New Orleans, La., for defendant-
appellee.
Appeal from the United States
District Court for the Eastern District
of Louisiana.
Before GARZA, DAVIS and JONES,
Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Pizzitolo filed this action against
his employer, Electro-Coal Transfer Corp.
(Electro-Coal), to recover damages under
the Jones Act for personal injuries he
suffered in the course of his employment.
Following a trial, the jury returned a
verdict for Pizzitolo but the district
court granted Electro-Coal's motion for
judgment notwithstanding the verdict.
The district court concluded that
Pizzitolo was not a seaman and his
exclusive remedy against his employer was
A-S
provided by the Longshore and Harbor
Workers' Compensation Act (LHWCA). We
affirm.
Ie
FACTS
Electro-Coal owns and operates a
coal terminal on the west bank of the
Mississippi River near Davant, Louisiana.
The terminal consists of shoreside
buildings, .a coal storage area and a
dock. Electro-Coal routinely transfers
coal from vessel-to-vessel and between
vessels and the shoreside storage area.
Barges bringing coal to Electro-Coal
are ordinarily tied to the dock adjacent
to the terminal. This coal is then
either loaded onto other barges, on
seagoing vessels or is stored at the
terminal for later loading. The vessels
are loaded and unloaded by large electric
A-6
powered cranes and a series of electric
powered conveyor belts. Electro-Coal
owns and operates four harbor tugs and a
crane barge to load, unload and otherwise
assist vessels calling at its terminal.
A sister corporation owns’ twelve
oceangoing tugs and barges that regularly
call at the Davant terminal.
Pizzitolo is employed by Electro-
Coal as an electrician. He works a
standard forty-hour week. When he
arrives for work in the morning he
reports to the shore-based electrical
shop where he receives an assignment from
one of his foremen. When he finishes
that assignment, he returns to the shop
for a new one.
Pizzitolo spent approximately 75% of
his work time maintaining and repairing
the shore-based electrical machinery.
A-7
The other 25% of his work time was spent
replacing or repairing electrical
equipment on vessels owned by Electro-
Coal and its. Sister company while the
vessels were tied up at the terminal
dock.
At the time of his injury, Pizzitolo
was standing on a scaffold board above
the river, repairing one of the conveyors
used to load and unload vessels. The
scaffold board on which he was standing
broke and he fell into the river.
Pizzitolo filed this suit against
Electro-Coal seeking damages as a seaman
under the Jones Act for injuries he
suffered in the accident. During the
liability phase of the bifurcated jury
trial, three issues were presented to the
jury: (1) whether Pizzitolo was a
seaman and thus eligible to recover
A-8
damages under the Jones Act; (2)
whether Electro-Coal was negligent; and
(3) whether Pizzitolo was contributorily
negligent. The jury answered questions
(1) and (2) yes. The district court
disagreed with the jury's finding that
Pizzitolo was a seaman and granted
Electro-Coal's motion for JNOV on the
issue of seaman status; Pizzitolo
appeals that ruling. Electro-Coal is
displeased with the district court's
refusal to grant its motions for directed
verdict and judgment NOV on grounds the
evidence was insufficient to support the
jury's finding that it was negligent.
Il.
The question we must decide is
whether the jury was entitled to find
that Pizzitolo, a harbor worker whose
contact with vessels is limited to
A-9
performing vessel repairs, was a seaman
within the meaning of the Jones Act.
The parties frame the dispute as one
of whether Pizzitolo qualifies as a
seaman or member of the crew of a vessel
under a prong of the familiar Offshore
Co. v_ Robison, 266 F.2d 769, 779 (5th
Cir. 1959) test: whether Pizzitolo
performed a substantial portion of his
work aboard a fleet of vessels. Because
coverage under the Jones Act and the
LHWCA is mutually exclusive, this
argument assumes that Pizzitolo is not
covered by the LHWCA. For reasons that
follow, we conclude that this premise
cannot stand; Pizzitolo is covered by
the LHWCA and is not a member of the crew
of a vessel. We will first consider the
reasons Congress adopted the LHWCA in
1927 and who were the intended
beneficiaries of the Act. We wiil then
examine the 1972 amendments to the Act
and their effect on coverage of ship
repairers like Pizzitolo under the Act.
A. HISTORICAL BACKGROUND
Before Congress passed the Jones Act
in 1920, seamen had no right to sue the
vessel owner for negligence. Chelentis
v. Luckenback S.S. Co., 247 U.S. 372, 38
S.Ct. 501, 62 L.Ed. 1171 (1918). The
Jones Act, overruled Chelentis and
granted “any seaman" an action for
damages for the negligence of the vessel
owner, the master or fellow crewmembers.
Act of June 5, 1920,Ch. 250 Section 33,
41 Stat. 1007 (codified at 46 U.S.C.
Section 688).
A compensation scheme for harbor
workers developed much slower. In 1917,
the Supreme Court in Southern Pacific Co.
A-11
v. Jensen, 244 U.S. 205, 37 S.Ct. saa, €3
L.Ed. 1086 (1917} held that a state could
not constitutionally make its workmen's
compensation laws applicable to harbor
workers injured on a vessel. The Court
reasoned that the application of
different state statutes would result in
the "destruction of the very uniformity
in respect to maritime matters which the
constitution was designed to establish."
ZG. a& 217, 37 :8.¢t..-e¢ 520.
Congress recognized the gap: State
compensation acts covered workmen injured
on the dock yet land-based harbor workers
injured aboard vessels had no
compensation remedy. Between 1917 and
1927, Congress struggled to _ provide
benefits to harbor workers. Its first
attempt came five months after Jensen was
decided. Congress sought to make state
A-12
compensation remedies available to harbor
workers by amending the Saving to Suitors
Clause to preserve "to claimants the
rights and remedies under the workmen's
compensation law of any state." Act of
Oct. 6, 1917, Ch. 97, 40 Stat. 395. But
the Court in Knickerbocker Ice Co. Vv.
Stewart, 253 U.S. 149, 40 S. Ct. 438, 64
L.Ed. 834 (1920) struck down this effort
on grounds that Congress could not
delegate such legislation to others.
Congress apparently thought that
state compensation benefits could be
constitutionally extended to harbor
workers if they made it clear that such
benefits were not available to seamen. +
1 See Gilmore & Black, The Law of
Admiralty 407 (2d ed. 1975); Engerand &
Bale, Seaman Status Reconsidered, 24 S.Tex.
L.J. 431, 442 n. 89 (1983).
Both houses of Congress distinguished
(continued...)
A~13
In 1922, after enacting the Jones Act
remedy for seamen, Congress tried once
again to make state compensation statutes
available to land-based harbor workers.
This time, Congress amended the Savings
to Suitors Clause to preserve "to
claimants for compensation for injuries
to or death of persons other than to
master or members of a crew of a vessel,
their rights and remedies under the
workmen's compensation law of any state,
1(. . continued)
between port workers and seamen. The Senate
report provided that: "Longshoremen and ship
repairmen are land workers subject neither to
the peculiar conditions nor to the laws which
regulate seamen. They form a part of the
labor force of each state exactly as other
workmen in the port in which they are
employed. They are not migratory but local;
their wages, their conditions of living are
governed by local standards." S. Rep. No.
94, 67th Cong., 1st Sess. 1, 2-3 (1921). The
House Report provided that the harbor workers
"are part of the local labor force and are
permanently subject to the same conditions as
are other local workmen." H.R. Rep. No. 639,
67th Cong., 2d Sess. 1, 2 (1922).
A-14
district, territory or possession of the
United States, which rights and remedies
when conferred by law shall _ be
exclusive...." Act of June 10, 1922, Ch.
216, 42 Stat. 634. The exclusion of
vessel crewmembers from coverage under
this legislation did not save it; in
Washington v. W. C. Dawson & Co., 264
u.8. 229, 44 68.Ct. 302, 66 L.Ed. 646
(1924), the Court held the legislation
unconstitutional.
Another significant opinion from the
Supreme Court was handed down shortly
before Congress passed the LHWCA. In
International Stevedoring Co. v. Haverty,
“75 9.8. -36, 47 @.Ct. 19, 71 L.BG. 157
(1926), a longshoreman was injured by the
negligence of a fellow employee and the
injured longshoreman sued his employer
under the Jones Act. The Court allowed
A-15
Haverty to recover under the Jones Act by
giving an expansive interpretation to the
word seaman "to include stevedores
employed in maritime work on navigable
waters." Id. at 52, 47 S.Ct. at 19.
In 1927, within months of the
Haverty decision, Congress passed a
uniform federal compensation act for
maritime workers, the LHWCA.2 This Act
required the employer to. provide
prescribed benefits "in respect of
disability or death of an employee, but
only if a disability or death results
from an injury occurring upon the
navigable waters of the United States ...
and if recovery for the disability or
death through workmen's’ compensation
2 Act of March 4, 1927, Ch. 509, 44
Stat. 1424 (codified as amended at 33
U.S.C. Section 901-950).
proceedings may not validly be provided
by state law." The intended
beneficiaries of the Act are spelled out
in the Senate report:
The purpose of this bill
is to provide for compensation,
in the stead of liability, for
a class of employees commonly
known as “longshoremen." These
men are mainly employed in
loading, unloading, refitting
and repairing ships: but it
should be remarked that
injuries occurring in loading
or unloading are not covered
unless they are on the ship or
between the wharf and the ship
so as to bring them within the
maritime jurisdiction of the
United States.
S.R. No. 973, 69th Cong., ist Sess. 16
(1927). The 1927 Act, consistent with
the 1922 Act, did not extend benefits to
"a master or member of a crew of any
vessel...." Act of March 4, 1927, Ch.
509, Section 2(3), 44 Stat. at 1425.
No definition of "member of a crew"
is included in the LHWCA, but two Supreme
A-17
Court cases are instructive on its
meaning. In South Chicago Coal & Dock
Co. v. Bassett, 309 U.S. 251, 60 S.Ct.
544, 84 L.Ed. 732 (1940), a workman
drowned while working aboard a lighter
used for providing coal to steamships.
The Court was presented with the question
of whether his widow was entitled to
benefits under the LHWCA.
The Court described generally the
type of workers who were covered by the
Act despite the "member of the crew"
exception:
We think it is clear that
Congress in finally adopting
the phrase ‘a master or member
of a crew' in making its
exception, intended to leave
entitled to compensation all
those various sorts of
longshoremen and harbor workers
who were performing labor on a
vessel....
” * * * *
They were persons serving on
A-18
vessels, to be sure, but their
service was that of laborers,
of the sort performed by
longshoremen and harbor workers
and thus’ distinguished from
those employees on the vessel
who are naturally and primarily
on board to aid in her
navigation.
Id. at 257, 260, 60 S.Ct. at 548, 549.
The most definitive expression by
the Court on the meaning of the member of
the crew exclusion and the relationship
between that exclusion and "seamen" in
the Jones Act was made in Swanson v.
Marra Brothers, Inc., 328 U.S. 1, 66
S.Ct. 869, 90 L.Ed. 1045 (1946). The
question before the Court was whether a
longshoreman injured on a dock could
recover benefits under the Jones Act.
The employee argued that Haverty
established his right to claim Jones Act
benefits and that his right to _ such
benefits was unaffected by the LHWCA
A-19
because he was injured on land, outside
the coverage of the LHWCA. The Court
first discussed the relationship between
the member of the crew exclusion of the
LHWCA and seamen who are covered by the
Jones Act: "We must take it that the
effect of these provisions of the
Longshoremen's Act is to confine the
benefits of the Jones Act to the members
of the crew of a vessel plying in
mavigable waters and to substitute for
the right of recovery recognized by the
Haverty case only such rights’ to
compensation as are given by the
Longshoremen'‘s Act." Id. at 7, 66 S.Ct.
at 872. The Court made it clear that the
LHWCA legislatively overruled Haverty:
"The Act thus excludes from its benefits
stevedores not members of the crew who
are injured on navigable waters’ from
A-20
a
#
recovering under the Jones Act as
interpreted by the Haverty Case." Id. at
6, 66 S.Ct. at 871. The Court affirmed
the dismissal of the Jones Act. suit and
concluded that Swanson was relegated to
his remedy for compensation under state
law.
The Supreme Court decided several
cases in the 1940's and 1950's on the
question of whether facts in a particular
case were sufficient to permit a finding
that the employee was a seaman and
eligible to claim Jones Act damages. 2
3 Butler _v. Whiteman, 356 U.S. 271, 78
S.Ct. 734, 2 L.Ed.2d 754 (1958) (laborer).
Gri v. Ra ile -, 356 U.S.
252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958)
(construction worker engaged in constructing,
and installing a radir warning
station 110 miles offshore); Senko v. LaCrosse
Dredging Corp., 352 U.S. 370, 77 §.Ct. 415, 1
L.Ed.2P 404 #(1957) (crewmember aboard a
dredge); Gianfala v. Texas Co., 350 U.S. 879,
76 S.Ct. 141, 100 L.Bd.775 (1955) (an oilfield
worker employed aboard a submersible drilling
(continued...)
A-21
None of the workmen whose status was
under consideration in those cases was a
longshoreman, ship repairer or other
traditional harbor worker; consequently
those cases do not assist us in our
analysis of today's case.
In summary, the efforts of Congress
to cover harbor workers before 1927, the
language of the 1927 #4=LHWCA, the
legislative history of the Act and
decisions of the Supreme Court after its
enactment reflect who Congress intended
to benefit when it adopted the LHWCA:
The land-based harbor workers such as
longshoremen and ship repairers who were
3(.. .continued)
barge); Desper v. Starved Rock Ferry Co., 342
U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952)
(crewmember status denied on ground that the
vessel was not engaged in navigation); Norton
Vv. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88
L.Ed. 931 (1944) (a boatman on a barge).
injured on vessels and ineligible to
recover state workers' compensation
benefits. Congress distinguished seamen
or vessel crewmembers from the land-based
harbor workers and provided a distinct
remedy for them in the Jones Act.
B. THE 1972 AMENDMENTS TO LHWCA
In 1972, Congress made its first
significant amendment to the 1927 Act.
In Director, OWCP v. Perini North River
Assoc., 459 U.S. 297, 313, 103 S.Ct. 634,
645,. 74 L.Ed.2a 465 (1983), the Court
explained that the amendments were
primarily intended "to raise the amount
of compensation available under the
LHWCA, to extend coverage of the Act to
include certain contiguous land areas, to
eliminate the longshoremen's’~ strict-
liability seaworthiness remedy against
shipowners, to eliminate shipowner's
A-23
Claims for indemnification from
stevedores, and to promulgate certain
administrative reforms."
The amendment to the definition of
employee is the change most relevant to
the issue in this case. The definition
of "employee" was amended to include "any
person engaged in maritime employment,
including any longshoreman or other
person engaged in longshoring operations,
and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker,
but such term does not include ... a
master or member of a crew of any vessel;
coo”* 33 U.S.C. Section 902(3). Given
the judicial gloss placed on the 1927
Act, the amendment did not materially
change the type of workers entitled to
coverage. In Director, OWCP v. Perini,
459 U.S. at 315, 103 S.Ct. at 646, the
Court held that coverage of employees
injured on navigable waters was not
reduced or restricted by the 1972
amendments. Significantly the amended
Act did, however, expressly provide
coverage for employees engaged in certain
occupations including longshoremen,
shipbuilders, ship repairers and ship-
breakers. Coverage was also extended to
cover injuries occurring not only ~-on
‘navigable waters but also on "any
adjoining pier, wharf, dry dock,
terminal, building, way, marine railway,
or other adjoining area customarily used
by an employer in loading, unloading,
repairing, dismantling, or building a
vessel." 33 U.S.C. Section 903(a).
Congress could have hardly made it
clearer that it intended to afford
complete coverage to employees engaged in
A-25
the occupations enumerated in the Act so
long as the location of the injury met
the situs test. So that harbor workers
who worked on both vessels and the
adjacent dock would not walk in and out
of coverage during the course of their
work, the benefits of the Act were
extended to them while working on land
adjacent to the water. See Northeast
Marine Terminal wv Caputo, 432 U.S. 249,
261, 97 S.Ct. 2346, 2356, 53 L.B4.24 320
(1977).
{1} Although the Supreme Court has
had occasion to consider the definition
of "employee" under the amended Act in
several cases, 4 it has not addressed
4 Herb's Welding, Inc. v. Gray, 470
U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406
(1985) ; Director, OWCP v. Perini North
River Assoc., 459 U.S. 297, 103 S.Ct.
634, 74 L.Ed.2d 465 (1983); Sun _ Ship,
Inc. v. Pennsylvania, 447 U.S. 715, 100
(continued...)
A-26
whether an employee engaged in one of the
occupations expressly covered by the
LHWCA is eligible for Jones Act benefits.
Our own cases, however, provide support
for the view that a workman engaged in
one of these occupations is unqualifiedly
aewanai by the LHWCA and therefore
ineligible for benefits under the Jones
Act. In Bouvier v. Krenz, 702 F.2d 89
(5th Cir. 1983), the decedent was
employed by Avondale Shipyards as a
rigger. Mr. Bouvier's duties consisted
primarily of removing machinery from
vessels to be taken ashore for repair and
then reinstalling the repaired machinery.
4(.. .continuéd)
S.Ct. 2432, 65 L.Ed.2d 458 (1980); P.C.
Pfeiffer Co. v. Ford, 444 U.S. 69, 100
S.Ct. 328, 62 L.Ed.2d 225 (1979);
Northeast Marine Terminal Co. v. Caputo,
432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed. 2d
320 (1977).
We held that Bouvier's relationship to
the vessels on which he worked was not
sufficiently continuous or substantial to
permit a jury to find seaman status.
Alternatively, we stated that even if the
relationship to the group of vessels had
been substantial, "nevertheless Bouvier's
work as a shore-bound ship repairman
working for a shipyard does not make him
a Jones Act seaman.... We observe also
that the Longshoremen's and Harbor
Workers' Compensation Act specifically
covers ‘any harborworker, including a
ship repairman [or] shipbuilder ... [but
not] a master or member of a crew of any
vessel.... The language of the LHWCA
thus strongly supports, indeed arguably
demands, the conclusion that a harbor-
bound ship repairman is as a matter of
law not a ‘member of a crew' and thus not
A-28
a Jones Act seaman." Id. at 91.
In Balfer v. Mayronne Mud & Chemical
Co., 762 F.2d 432 (5th Cir. 1985), Balfer
was employed to load sacks of chemicals
aboard barges and other vessels at his
employer's dock. We affirmed the
district court's summary judgment in
favor of the employer and held that
Balfer's exclusive remedy was under the
LHWCA. We stated: "Viewing the record
in the liqht most favorable to Balfer, it
is manifestly clear that Balfer was a
longshoreman and not a seaman." See also
Buras v. Commercial Testing & Engineering
Co., 736 F.2d 307 (Sth Cir. 1984);
Thomas v. Peterson Marine Service, Inc.,
411 F.2d 592 (5th Cir. 1969). Although
we have on occasion analyzed the question
of whether an employee engaged in
longshoring or ship repairing was a
A-29
member of the crew of a vessel under the
Robison test? we are persuaded that such
an analysis is unnecessary if the
employee is engaged in an occupation
expressly enumerated in the Act.
C. CONCLUSION |
[2} The 1927 LHWCA, in effect,
amended the Jones Act to make Jones Act
benefits available only to maritime
workers not covered by the LHWCA. Harbor
workers engaged in occupations such as
longshoring, shipbuilding and_ ship
repairing, who were injured on navigable
water, were the intended beneficiaries of
the 1927 Act. The LHWCA as amended in
1972 expressly covered workmen engaged in
5 See., e.g., Jones v. Mississippi
River Grain Elevator Co., 703 F.2d 108
(5th Cir. 1983); Stokes _v. B.T. Oilfield
Services, Inc., 617 F.2d 1205 (5th Cir.
1980); Burns _v. _Anchor-Wate Co., 469
F.2d 730 (5th Cir. 1972).
A-30
aaa
these occupations. In 1972, coverage of
these workmen's activities was extended
beyond navigable water to cover their
injuries on adjacent landbased work
locations. Given the explicit coverage
of workmen engaged in the enumerated
occupations, we reject the notion that
Congress could have intended to exclude
them from the benefits of the LHWCA as
members of the crew of a vessel. In sum,
we hold that because longshoremen,
shipbuilders and ship repairers are
engaged in occupations enumerated in the
LHWCA, they are unqualifiedly covered by
that Act if they meet the Act's situs
requirement$y coverage of these workinen
by the LHWCA renders them ineligible for
consideration as seamen or members of the
crew of a vessel entitled to claim the
benefits of the Jones Act.
A-31
The only work Pizzitolo performed
aboard vessels was electrical repair
work. Even if he spent a substantial
portion of his work time aboard a
recognized fleet of vessels performing
electrical repairs, for reasons stated
above he is covered by the LHWCA and
cannot qualify as a seaman within the
meaning of the Jones Act.
AFFIRMED.
32
>
i
APPENDIX "B"
JUDGMENT AND ORDER CITING REASONS
EAS 2 Mai y “SE ee 2: i) 2 - _/_,_ = __
OR JUDGMENT NOTWITHSTANDING THE VERDICT
FOR JUDGMENT NOTWITHSTANDING thE Vents
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HONORABLE A. J. MCNAMARA
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS R. PIZZITOLO * CIVIL ACTION
VERSUS * NO. 83-5243
ELECTRO-COAL TRANSFER * SECTION "D"
CORPORATION (5)
JUDGMENT
For the reasons set forth in the
court's Order dated December 11, 1985
granting a judgment in favor of the
defendant notwithstanding the jury's
verdict;
IT IS ORDERED, ADJUDGED AND DECREED
that there be judgment in favor of
Defendant, Electro-Coal Transfer
Corporation, and against Plaintiff,
Nicholas R. Pizzitolo, DISMISSING
Plaintiff's complaint at his costs.
New Orleans, Louisiana, this 11th
Gay of December, 1985.
S/ A. J. McNamara
UNITED STATES DISTRICT
JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS R. PIZZITOLO * CIVIL ACTION
VERSUS * NO. 83-5243
ELECTRO-COAL TRANSFER * SECTION “D"
CORPORATION (5)
ORDER
A trial in this matter, held October
22, 1985, resulted in a jury verdict in
favor of Plaintiff, Nicholas’ R.
Pizzitolo, on the issues of seaman status
and liability. Subsequent to this
verdict, Defendant, Electro-Coal Transfer
Corp. (Electro-Coal), moved for a
judgment notwithstanding the verdict on
the grounds that there was no reasonable
evidentiary basis for the jury's findings
on either of these issues. The parties
later filed memoranda concerning whether
B-3
or not the court should grant a judgment
notwithstanding the verdict in this case,
and the matter was taken under
advisement. Having considered the
evidence, the memoranda filed by counsel,
and the applicable law, I find that a
judgment notwithstanding the verdict
should be entered in favor of Electro-
Coal on the issue of seaman status.
In reaching this decision, I
recognize that the standard to be applied
in determining whether or not a court
should grant a judgment notwithstanding
the verdict on the issue of seaman
status, is the standard of whether there
waS a reasonable evidentiary basis for
the jury's finding. Wallace v.
Oceaneering International, 727 F.2d 427
(5th Cir. 1984).
Upon reviewing the evidence, I find
B-4
that while the relationship of the
vessels in question to the operation of
Electro-Coal's business is substantial,
that relationship is not the proper focus
on the seaman status’ inquiry. In
determining whether or not a plaintiff
can be properly classified as a seaman,
the focus of the inquiry is not the
relationship of the vessels to the
defendant's business, but the nature of
the plaintiff's relationship to the
vessels. Specifically, in order to be
Classified as a seaman, a plaintiff must
show that he was permanently assigned to
a vessel or fleet of vessels or performed
a substantial part of his work aboard the
vessel; and, that his employment
contributed to the function of the vessel
or to the accomplishment of its objective
or to the maintenance of the vessel
B-5
during a voyage or during anchorage for
trips in the future. Offshore Company v.
Robison, 266 F.2d 769, 779 (5th Cir.
1959).
In this case, I find the evidence is
overwhelming that the plaintiff's duties
aboard the vessels were not substantial
but merely transitory or sporadic and
plaintiff's relationship to the vessels
lacked the permanency required by
Robison. On those occasions when the
plaintiff was required to work on a
vessel, he would be on the vessel only
for the purpose of performing’ some
specific electrical repair and once the
repair was accomplished, the plaintiff
would leave the vessel and return to the
electrical shop for his next assignment
which, more often than not, would be
shoreside in the plant and completely
B-6
unrelated to any vessel activity.
Accordingly, plaintiff has failed to
satisfy the first prong of the Robison
test and, therefore, may not be
classified as a seaman. In summary, when
considered in the light most favorable to
the plaintiff, I find the facts and
inferences as to the seaman status
question point so strongly anda
overwhelmingly in favor of the defendant
that reasonable men could not arrive at a
contrary verdict. See, Boeing Company v.
Shipman, 411 F.2d 365 (5th Cir. -1969).
| Because I have determined that the
plaintiff does not have seaman status,
there is no need to address the issue of
negligence.
Judgment will be entered
accordingly.
New Orleans, Louisiana, this 11th
day of December, 1985.
S/ A. J. McNamara
UNITED STATES DISTRICT
JUDGE
APPENDIX "C"
DENIAL — DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MINUTE ENTRY
SEPTEMBER 26, 1984
MINUTE ENTRY
MCNAMARA, J.
September 26, 1984
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS R. PIZZITOLO * CIVIL ACTION
VERSUS * NO. 83-5243
ELECTRO-COAL TRANSFER * SECTION "D"
CORPORATION (5)
Before this court is the Motion of
Defendant, Electro-Coal Transfer
Corporation, for-Summary Judgment in the
above captioned matter seeking dismissal
of the claims of Plaintiff, Nicholas
Pizzitolo. A memorandum in opposition to
the Motion for Summary Judgment has been
filed.
Having considered the memoranda of
counsel and the applicable law, the court
finds as to Defendant, Electro-Coal
C-3
Transfer Corporation, there is a genuine
issue as to a material fact and
Defendant, Electro-Coal Transfer
Corporation, is not entitled to Summary
Judgment in its favor as a matter of law;
accordingly,
IT IS ORDERED that the Defendant's
Motion for Summary Judgment’ seeking
dismissal of the complaints against
Electro-Coal Transfer Corporation be and
it is hereby DENIED.
APPENDIX "D"
DENIAL - PETITION FOR REHEARING
DENIAL — SUGGESTION FOR REHEARING EN BANC
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 86-3006
NICHOLAS R. PIZZITOLO,
Plaintiff-Appellant,
and
NATIONAL UNION FIRE INSURANCE COMPANY,
Intervenor-Appellant,
versus
ELECTRO-COAL TRANSFER CORPORATION,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Louisiana
ON PETITION FOR REHEARING AND SUGGESTION
FOR REHEARING EN BANC
(Opinion 3-20-87 , 5 Cir., 198
F.2d )
(JULY 7, 1987)
Before GARZA, DAVIS and JONES, Circuit
Judges.
PER CURIAM:
The Petition for Rehearing is
DENIED and no member of this panel nor
Judge in regular active service on the
Court having requested that the Court be
polled on rehearing en banc, (Federal
Rules of Appellate Procedure and Local
Rule 35) the Suggestion for Rehearing En
Banc is DENIED.
ENTERED FOR THE COURT:
s/ W. Eugene Davis
United States Circuit Judge
APPENDIX "E"
TRIAL COURT'S RULING ON DEFENDANT'S
MOTION TO AMEND ORDER GRANTING JUDGMENT
NOTWITHSTANDING THE VERDICT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MINUTE ENTRY
JANUARY 15, 1986
MINUTE ENTRY
MCNAMARA, J.
January 15, 1986
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS R. PIZZITOLO * CIVIL ACTION
VERSUS * NO. 83-5243
ELECTRO-COAL TRANSFER * SECTION "D"
CORPORATION (5)
Before the court is the Motion of
Defendant, Electro-Coal Transfer
Corporation, to Amend the court's Order
and Reasons for Judgment which were
entered on December 13, 1985. The
Motion, scheduled to be heard on
Wednesday, January 15, 1986, was
submitted to the court on briefs, without
oral argument.
Having considered the memoranda of
ae
counsel and the applicable law;
5 ly Is ORDERED that Defendant's
Motion to Amend the court's Order and
Reasons for Judgment is hereby DENIED.
s/ AJM
APPENDIX "F"
JURY VERDICT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MINUTE ENTRY
| INTERROGATORIES TO THE JURY
83-5243
(5)
PLAINTIFFS DEFENDANTS
NICHOLAS R. PIZZITOLO ELECTRO-COAL
TRANSFER
CORPORATION
INTERVENTION (8-2-84)
NATIONAL UNION FIRE INSURANCE
COMPANY
46 USC 688 - JONES ACT - MARINE, PERSONAL
INJURY
ATTORNEYS
Ferdinand J. Kleppner, Esq. T.A.
3224 N. Turnbull
Metairie, LA 70002
887-6571
and
Victor Marsiglia, Jr.
Same address
FOR: Pl1tf
John O. Charrier, Jr., Esq.
Edward R. Getz, Esq.
Jeanmarie Lococo
JONES, WALKER, ETC.
225 Baronne St., 18th Floor
New Orleans, LA 70112
581-6641
FOR: Electro-Coal Transfer Corp.
sa |
MCGLINCHEY, STAFFORD, MINTZ, CELLINI
& LANG
Lance S. Ostendorf, Esq.
630 Camp St.
NOLA 70130
586-1200
FOR: INTERVENOR
WEDNESDAY, OCTOBER 23, 1985
10:30 AM
JURY TRIAL (held and cont'd from
10/22/85)
CTRM. DEPUTY: Pam Radosta
CT. REPORTER: Tom Conrad
All present and ready.
Jury returned to courtroom.
Deft. Rests.
Pltf's Rebuttal Witness: Nicholas
Pizzitolo, recalled, resumes testimony.
Pltf. Rests.
Jury removed from courtroom.
Deft. re-urges Motion for Directed
Verdict - ORDERED SUBMITTED.
Jury returned to courtroom.
Closing arguments made by counsel for
plaintiff and defendant. }
Jury Charged and Instructed by the Court.
F-2
Jury retires for deliberation at 1:45 PM.
Jury returns from deliberation at 3:00
PM.
VERDICT: See Verdict Form Attached.
On Motion of Defendant, jury polled and
all answered in the affirmative.
Jury excused.
Deft. orally moves for Judgment
Notwithstanding the Verdict - ORDERED
SUBMITTED.
Additional briefs to be filed by 5:00 PM
on Friday, November 22, 1985.
Court Adjourned.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS PIZZITOLO CIVIL ACTION
VERSUS NO. 83-5243
ELECTRO-COAL TRANSFER SECTION "D"(5)
CORP.
INTERROGATORIES TO THE JURY
As On March 25, 1982, the date of Mr.
Pizzitolo's accident, was he employed by
Defendant, Electro-Coal Transfer
Corporation, as a seaman or a member of
the crew of a vessel or identifiable
fleet of vessels or was he employed by
Electro-Coal Transfer Corporation in some
other capacity but not as a seaman?
A. He was employed as a
seaman or member of the crew of
a vessel or identifiable fleet
OZ WOSSGG1S . . 2 6 « « —
B. He was employed in some
F-4
other capacity but not as a
seaman
(NOTE:
In answer to Question One above, if you
checked paragraph "A", answer the
remaining questions that follow. sé,
however, in answer to Question One you
checked paragraph "B", you should answer
no further questions but have your
Foreperson date and sign this Form and
return to the Courtroom.)
2) Do you find that the negligence of
the Defendant was a iliegal cause of the
accident on March 25, 1982?
YES X
NO
3) Do you find that the negligence of
the Plaintiff was a legal cause of his
own accident?
YES
NO X
(NOTE:
If your answer to Question Three is
"Yes", answer Question Four. If your
answer to Question Three is "NO", do not
F-3
answer Question Four but have the
Foreperson date and sign this Form and
return to the Courtroom. }
4. If your answer to Question Three was
"YES", please indicate below the relative
percentages of negligence that caused the
Plaintiff's accident.
A. Negligence of the Defendant
B. Negligence of the Plaintiff
TOTAL
(NOTE:
The total of the two percentages given in
answer to Question Four should be 100
percent.)
DATE: 10-23-85
s/ Donald C. Saulruy
FOREPERSON
APPENDIX " G "
TRIAL TRANSCRIPT EXCERPTS
APPENDIX ™" G ™ —- INDEX
TRIAL TRANSCRIPT EXCERPTS
Testimony of
NICHOLAS R. PIZZITOLO
(Volume 4)
Record Pages Appendix Pages
4 G-l =- G-2
6-19 G-3 = G-23
24-26 G-24 = G-27
50-51 G-28 - G-30
82-84 G-31 = G=-33
86-88 G-34 - G=-37
105-108 G-38 - G-42
Testimony of
JACK ANTHONY WHITE
(Volume 5)
59-65 G-43 = G=-52
68 G-53 - G-54
77 G-55
Record Pages
Testimony of
JOE DAVID RICE
(Volume 5)
83-90
Testimony of
JACK H. TAYLOR
(Volume 5)
113-118
127-128
133
Testimony of
MANUEL PAUL GUERRA
(Volume 5)
158/159-160
173-181
183-185
3
181)
rey)
'
‘?)
|
0’
roy)
G-67 - G-76
G-77 - G-78
G-79 = G-80
G=-81
G-82 - G-94
G-95 - G-95
[4] [4]
BY MR. KLEPPNER:
Q Mr. Pizzitolo vould you describe
for the jury, as you recollect, or
recall, what the operations of the
Electro-Coal plant, where you worked,
were, what do they do?
A We maintain all electrical equipment
and boats.
Q Now, would you tell the jury,
please, what electrical equipment, first,
you referred to when you said _ you
maintained the electrical equipment and
boats, what electrical equipment did you
maintain?
A We maintained on the boats, we
maintained all the electrical equipment
which consists of -- on the harbor boats
you got winches, lighting, generators,
you have sensing units.
G-1l
Q First of all, tell the jury what
boats you are referring to, you _ said
harbor boats.
A I'm referring to the harbor boats,
that's the AUDRY PEARSON, BLAIR WILSON,
the ELECTRA, and the GINNY HOWELL.
[6] [6]
BY MR. KLEPPNER:
Q Is any of the coal that's brought
into Davant brought by any other means
than water?
A No, sir, without water they couldn't
function.
Q Is any of the coal that's brought
into Davant brought by any other means
than vessels?
A No, sir.
Q Is any of the coal that's brought to
Davant transported from Davant by any
other means than water?
A No, sir, it's got to be water.
Q Where were the four boats which you
just described as harbor tugs maintained,
where were they kept?
A They are kept at Davant and they
were maintained by the electrical crew on
Ges
the electrical problems.
Q How many personnel were involved
with the operations of these harbor
boats?
A Each boat had, iL. Chane “at was
referred to as the captain of the boat
and deckhand.
Q Were there any electricians aboard
these boats?
A No, sir.
Q Were there any electrical systems
aboard these boats?
ry Yes, sir, these boats were total
electrical dependent.
Q Would you be more specific and tell
the jury what specific systems on these
harbor boats were dependent upon
electrical operations.
A Their radar was dependent, their
Winches, so that way they could get
G-4
hooked onto the barges. We have
electrical devices to measure their fuel
to let them know when the fuel -- they
were low on fuel. They had switches to
tell the oil pressure to make sure that
the engine wouldn't run out of oil. We
had pressure switches, oil pressure
switches, water temperatures switches,
that was to protect the engine. Then, on
the generators we had large panels with
rheostats where you can regulate the
voltage where you wouldn't raise the
voltage up too high. It had to maintain
a certain voltage. We had frequency
meters where you would put it into the
right cycle and we operate on sixty
cycles. We had electrical motors that
ran pumps, developed the air pressure to
help start the engines, and also to help
them with their steering which was
G-S
hydraulic. So, if you lost electrical
power, you wouldn't have the hydraulics.
We maintained the air conditioning units,
cleaned them, fixed them, changed motors.
We maintain all the lighting, switches,
receptacles. One boat in particular had
a boom on the back, a hydraulic boom, we
supplied the power for the switches to
release the hydraulics.
Q Now, what function did those boats
play in the movement of coal?
A Those boats were vital, these boats
were vital, they was the only ones that
could bring the coal to the dock. The
white boats were too big to come inside.
They would bring the coal to the dock to
unload and the white boats would be
anchored out into the river and the
little boats would have to go out, the
harbor tugs would have to go out, pick
G-6
the barges, bring it in, take the empty
barge out and bring it back out into the
river and tie them up.
Q What was your specific job title at
Electro-Coal?
rN Senior electrician.
Q How many members were there in the
electrical crew at Electro-Coal when you
worked there?
A They had three shift electricians,
let's see, in the day we had Dale, Jack
White, Robert, Alvin Trupiano, myself and
Freddie, approximately six men.
Q How many senior electricians were
there?
A I was the only senior electrician.
Q What is shift work?
aA Shift work, we have men, the plant
operates twenty-four hours a day and we
have men that work twelve-hour shifts,
G-7
they are separate from us. They belong
to our department, but they don't do any
of the repair work.
Q What were you?
A I was senior electrician, required
to do repair work on the boats and on
land.
Q Did you work days, or nights?
A I worked days.
Q Now, who maintained and repaired the
electrical systems on these four harbor
boats?
The electrical department.
Whom did that consist of?
That consist of our crew.
Was anyone else, to your knowledge,
connected with Electro-Coal, or its
Sister companies, charged with the repair
and maintenance of those harbor boats?
A ele. that was our
responsibility. Only when something big
would break, then they would have to take
it to drydock.
Q When the repairs that you talked
about and maintenance that you mentioned
were performed, where were these vessels?
a These vessels were in the river.
Q And what was their condition, were
they moving or still?
Bs Sometimes moving, sometimes still.
We would work on them, if we couldn't
shut them down, we would have to work on
them while they were still moving.
Q In comparison with your. fellow
members of your crew, did you work more
than others, or less than others aboard
those boats?
MR. CHARRIER: Your Honor, I object
to the form of the question, one, its
leading.
Number two, it isn't specific,
particularly in the case of this kind--
THE COURT: Objection overruled.
MR. CHARRIER: Thank you, sir.
THE WITNESS: Sir, could you repeat
THE COURT: In comparison to the
other members or other electricians, did
you work more than, or less than them on
vessels?
THE WITNESS: I would say more than
them, because I was the senior.
BY MR. KLEPPNER:
Q Were you required to wear any
special clothing at all when you went
aboard these vessels?
A Yes, sir, hard hat and life jacket.
Q Would you describe for the jury the
distance that these harbor tugs traveled
in the course of their operations,
generally. =
a I-would estimate it could be about-
- they could be roughly maybe a mile
downriver, and then they would have to go
down pick it up and come back and bring
the barge. Now, they would be times when
they turning ships and they would be out
in the middle of the river helping these
big ships to turn around to head out to
the mouth of the river.
Q Were there any other vessels that
remained in the vicinity of Davant that
had electrical systems for your
maintenance?
A Yes, sir, the white, the river tugs
and the oceangoing tugs --
Q Well, let's start --
A -- would be in our vicinity, we had
to do -- the electric department would do
maintenance on them.
Q What were the river tugs?
A The river tugs what we refer to them
is the big white boats, all these,
because they so big. There was the JULIA
WOODS, GIRLIE KNIGHT, MARTHA LYNN.
Q Now, where did these river rugs
travel to and from, if at all?
A These river tugs would go upstream
to wherever they were picking up the coal
and bring it back to us. That was their
travel, up and down.
Q To your knowledge, did they have any
other function, or duties, other than
picking up coal for Electro-Coal's
operations?
a To my knowledge --
MR. CHARRIER: Your Honor, I object,
unless some additional predicate is laid.
THE COURT: Objection overruled.
THE WITNESS: Their sole -- sir, can
G-12
I answer that?
THE COURT: Yes.
THE WITNESS: Their sole object, to
my knowledge, was to go up, pick up the
coal and bring the coal back to us.
BY MR. KLEPPNER:
Q When they were in the Davant area,
how long would they generally stay?
A That would depend on the amount of
barges that they brought in. The barges
would vary, the number of barges they
would bring in, but roughly I would say
four days.
Q How were these vessels powered?
A These vessels were powered by diesel
engines and electrical power.
Q What sort of electrical systems were
aboard these vessels, to your knowledge?
A These vessels had a lot of able-
bodied seamens on it, they would have
stoves, refrigerators, air conditioners,
generators, transformers, power panels,
radar.
Q When these vessels were in the
vicinity of Davant, did any of them ever
experience electrical problems?
A Yes, sir.
Q When this occurred, who was charged
with repairing them?
A The electrical crew, they would call
us out and the electrical crew would go
out and do it.
Q Can you recite to the jury any
specific instances where you’ were
required to repair electrical systems or
replace them aboard these vessels?
rN Yes, sir, at one time we had to
install a ship-to-shore power and to do
that we had to have a large transformer
to receive the 440 and reduce it down,
G-14
the voltage, so when they were parked
they wouldn't have to run their engines
and drive their generators, they could
operate off of shore power. And we also
went out there and installed lighting for
them, mounted large quartz lights. We
worked on their stoves when they broken
down, they couldn't travel upriver
without their stoves, they needed their
food.
Q How long did the work that you
described in changing over the power
systems take, do you recall?
A Three to four days.
Q For all four boats?
A No, sir, one boat.
Q How many boats were involved in
this? ;
A Four boats, the four large white
boats.
G-15
Q During the course of your work in
this project, how were you dressed, any
particular clothing you were required to
wear?
A A life jacket, hard hat.
Q Where were the boats, were they out
of the water, or in the water?
A They we-e in the river, upriver.
Q Did these ne that is, the
river tugs, as we've called them, have
any other electrical personnel, that is,
electrician, aboard them?
A They had no electrician. They had an
engineer, but he wasn't an electrician.
Q On the instances when you indicated
you were assigned to work on these harbor
tugs and also the river tugs, who
assigned you that work?
A My foreman.
@) Who was that?
7)
1
16
A We have two foremens, Manuel Guerra
and Carl Rotolo.
Q Were there any other barges, or
vessels in the immediate vicinity of
Davant that employed electrical systems
requiring your attention?
A There were the oceangcoing tugs when
they were in our vicinity and they had
electrical problems we had to work on
them.
Q Do you ever recall any instances of
being required to work on these vessels?
A Yes, sir, I had lighting problems,
we had motor problems with the winches.
Q What vessels were these, do you know
their names? :
A Yes, sir, there were six of then,
BETTY CLUBRATH, BETTY WOOD, SARA HAYES,
LIBBY BLACK, ELLINA HICKS, KATHERINE
CLEWIS.
Q Did any of these vessels have on
board an electrician, to your knowledge?
A No, sir.
Q Were there any barges that you were
charged with repairing the electrical
systems on?
A Yes, sir.
Q Would you tell the jury what those
might have been?
A MARIE FLOOD, PEARLY JOHN, LOUISE
KIRKPATRICK, THELMA COLLINS, BARBARA
VOLT, PEARLY JOHN and CARGO ONE.
Q Let's start with CARGO ONE, where
was it located?
A That was located downriver,
approximately I estimate a mile downriver
in the river.
Q What, if any, electrical systems
required your attention on that barge?
A It was that barge was’ total
G-18
electric, the lighting, generator,
lighting panels, even the microwave oven.
Q Did people live aboard this barge?
A No, sir, what it was, they will
bring a crew out with -- the river tugs
would bring the crew to the CARGO ONE,
drop us off and then they would return
back to the fleet.
Q When you worked aboard that barge,
the CARGO ONE, were you required to wear
any special safety devices?
A Yes, sir, life jacket and a hard
hat.
Q Do you recall any specific work that
you performed on that, besides’ the
general items you just mentioned?
a Yes, sir, when the company leased
the barge, there was no lighting on the
barge and this being that we worked
twenty-four hours a day, at night, with
G-i9
the lighting situation was just so bad
that we was told to go out there and get
lights up so the men could work, so they
could see, mount them on the side so they
could see down onto the barges. Because
this barge is like a ship and the small
barges are low, and then they would have
to go down into it with the bucket to
take out the coal. And we had to put
lighting. But, we had a tremendous
problem with the lighting. At first, we
just went out there and tried to put up
temporary lighting and these cranes had
like a drag line and to keep the buckets
from swinging out too far, to try to
control the bucket, what was happening
the drag line was dragging over the barge
and knocking down the lights and busting
them up. First, we put up with EZ cord,
then they would sit the bucket down on
G-20
——7Ee—
)
the EZ cord, short the lights out and
knock out the lighting. Then we tried--
my boss said we got to do something with
the lighting, we went back out there and
ran marine cable. The same problem
happened. I told him, says, well, look,
the only way we are going to be able to
do this is to put it down in pipe, anchor
the pipe to the deck and use the pipe to
protect the wires. And then, we had to
mount little short pieces of pipe about
that tall and then mount the quartz
lights on top. And then, we went all the
way around the barge with that, put one
back so when the crew would get up when
they would change crews they would be
able to see to come up the ladder,
because there was no lighting. And we
had to do checks every day, they had to
have a man to go down there to check on
G-21
the generators to make sure that these
generators were working for the next man,
or for the next crew when they came on.
The day crew would check it out to make
sure it's working for the night crew.
Q Was anyone, other than your crew,
charged with the repair and maintenance
of the electrical system on CARGO ONE?
A No, sir, just our electrical crew.
Q Were your efforts aboard CARGO ONE
occasional, or regular --
MR. CHARRIER: Your Honor, I object.
THE COURT: Objection sustained.
MR. KLEPPNER: Thank you, your
Honor.
BY MR. KLEPPNER:
Q I am not sure whether this is
repetitive: Was anyone else charged with
the repair or maintenance of the
electrical systems of the oceangoing tugs
G-22
which you described, when they were in
the Davant area, other than your crew?
A No, sir, when they were in our area,
we did all the electrical work on those
boats.
[24] [24]
BY MR. KLEPPNER:
Q Now, Mr. Pizzitolo, let's go back to
the description of your vessel work, was
there any difference in the duties and
obligations you had with regard to the
vessels that you described throughout the
course of your employment with Electro-
Coal, did it ever change?
fs No, sir. We was always told that
the vessels was top priority.
Q Do you ever recall any specific
incidents that involved that particular
priority?
A There was many times.
Q What occurred in those instances?
a We would have to, sometimes, two
harbor boats would be down and it would
be only two boats on the line and I would
be working on the crane, they would say
G-24
let the crane go, come down, get the
harbor boats back on the line.
Q Why?
A We need the boats, we got to have
the boats, especially if the ladder
machine is down, that takes two boats in
itself, that would lock up two boats and
if we got a ship at the dock, one boat
would be breasting in on the ship and
that would leave just one boat.
Q Why were the boats so vital to the
operation of Electro-Coal, if you know?
MR. CHARRIER: Your Honor --
THE COURT: Objection sustained.
You are leading the witness, you are
testifying.
MR. KLEPPNER: All right.
THE COURT: Ask the question again.
BY MR. KLEPPNER:
Q Why were you told to do whatever you
G-25
did in the instance you just described,
do you know?
A Yes, sir, because if we didn't have
the boats in operation, we had our boats
tied up, we couldn't move coal.
MR. KLEPPNER: Your Honor, may I
have a moment before I conclude my
questioning?
THE COURT: Yes.
MR. KLEPPNER: Very briefly, your
Honor.
BY MR. KLEPPNER:
Q Mr. Pizzitolo, when you were working
on vessels, where did you eat your meals?
A If we was working on the white
boats, we would eat, they would let us
eat on the boats, they would fix us a
meal. If we was working on the
oceangoing tugs, we would eat with the
crew. If we worked on the river tugs,
G-26
sometimes if we was going to be out there
all day, we would take our lunch. And af
the job wasn't that big, we wouldn't take
our lunch. But, I always took something,
some form of food with me all the time.
[50] [50]
BY MR. CHARRIER:
Q Mr. Pizzitolo, you said that the
harbor boats were electrically dependent?
A Yes, sir.
Q These were the words you used?
A Yes, sir.
Q The harbor boats are powered by
diesel engines, are they not?
Q So, what turns the propellers on
these harbor boats is a diesel engine, or
two of them, perhaps?
A Yes, sir.
Q Do you know enough about diesel
engines to tell us whether a_ diesel
engine needs electricity to run?
A No, sir. But, I know they can't run
at night without electricity.
Q They need electricity to run the
G-28
lights?
A The lights, their radar.
Q They need electricity to do the
various other things you told us about?
A They need electricity to start up
the engines to drive the pumps to build
up the air pressure. Without no air
pressure, they can't start the engines.
They have to build up air pressure.
Q What moves those vessels along are
diesel engines which bur. fuel, is that
right?
A Yes, sir.
Q And the same is true for those big
white boats that you called them, that
you also said were electrically
dependent, those big white boats have
two, or three engines of 2500-horse-power
apiece, which are diesel powered, are
they not?
A Yes, sir.
Q And those oceangoing tugs which go
across the ocean, they are powered by
some large diesel engines of three, four,
or five thousand horse-power, are they
not?
A Yes, sir. But, they still need
electricity.
>)
i
30
[82] [82]
BY MR. CHARRIER:
Q Yes, sir. My question simply is,
can you tell us in terms of percentages
how much of your work was related to the
vessel, repair work that you have
described as opposed to the work of
maintenance of the plant as we discussed?
A I would say eight to ten hours a
week on the boats and the rest of it was
plant work.
Q All right, so that in a forty-hour
week, you are saying you would work eight
to ten hours on the boats and its repair
work?
rN Yes, sir
Q And was that true throughout your
career at Electro-Coal?
A It was years when it was more.
Q That would be a good average, is
G-31
—_~
that right, sir?
A Yes, sir, I would say so.
Q Mr. Pizzitolo, on the day of your
accident, this vessel that you mentioned
the name, CARGO ONE.
A Yes, sir.
Q Was not ‘i service at Electro-Coal's
plant anymore, was it?
A Sir, I can't remember that.
Q You don't have any information on
that point, you don't have any
recollection on that point, is that
right?
A No, sir, I can't remember that.
Q Earlier, in the preparation of that
case, you offered an affidavit that said
that you spent twenty-five days in the
year 1981, working on the CARGO ONE, do
you recall giving such an affidavit?
MR. KLEPPNER: Your Honor, I object
G-32
to the question.
THE COURT: Objection overruled.
THE WITNESS: I've worked, I don't
know about the year, but I've worked when
we installed those lights, I worked
twenty-five to thirty days.
[86] | [86]
BY MR. CHARRIER:
Q So, this affidavit says that you
worked twenty-five days in the year i981
on the vessel, is that right, on the
vessel CARGO ONE.
A That was installing the lights.
But, I made other trips out there.
Q Well, that is not what this
affidavit says, is it?
A No, sir, it doesn't say that.
Q The affidavit simply says that you
performed electrical work on the vessel
of the said corporation, that's Electro-
Coal, named CARGO ONE, for at least
twenty-five days, and was required to
take your meals aboard the vessel?
A Yes, sir.
Q That's what it says?
A Yes, sir.
Q
!
34
Q Now, today, you are telling me--
well, excuse me, today it's your
testimony, well, I did more work than
that --
THE COURT: That's not inconsistent
with the affidavit, he said at least
twenty-five days.
MR. CHARRIER: I am sorry.
THE COURT: You are suggesting that
there is an inconsistency in the
affidavit and his testimony. I am just
commenting on the evidence --
MR. CHARRIER: I apologize.
THE COURT: -- that there is not.
BY MR. CHARRIER:
Q I am asking, is it your testimony,
today, that you say you spent more than
that time?
A Yes, sir.
Q And you would say twenty-five to
thirty days, is that what you are saying?
A Twenty-five to thirty days, just
doing the lighting. I've made other
trips out there putting up maybe one, or
two lights.
Q So, your testimony is that you spent
twenty-five to thirty days putting the
lighting on that you talked about in your
earliest testimony?
A Yes, sir.
Q When Mr. Kleppner was questioning
you, is that right?
A Yes, sir.
Q And then you say, now, you made some
additional trips, is that right?
A I told him about the lighting, yes,
sir. But, I also told him that we had to
go out there every day to check the
generators and put the -- and check the
lights, maybe one or two lights, maybe
G-36
change a bulb.
Q You personally, had to go?
A Not all the time.
Q You didn't go every day once it
moved down there, did you?
A Once we completed the lighting, no,
I didn't go every day.
Q In fact, if it was a simple task,
you wouldn't go at all, would you, if it
was easy work, or something somebody else
could do, because of your particular
skill and value, you wouldn't go at all,
they would send somebody else?
A Not necessarily. We didn't know,
no, I would have -- they would send a
helper out there to run the generator.
Q But, the work of putting the lights
on that you described took twenty-five to
thirty days, is that right, sir?
?)
!
37
[105] [105]
BY MR. KLEPPNER:
Q Mr. Pizzitolo, to your knowledge,
did the deckhands and the captains on the
harbor tugs go home when their shift
ended?
a Yes, s1r
THE COURT: Was that on a daily
basis, or how long were their shifts, do
you know?
THE WITNESS They worked twelve-hour
shifts. After the end of their shift they
would go home, sir.
BY MR. KLEPPNER:
Q Was your crew ever required to
schedule or do preventative maintenance
aboard the harbor boats?
MR. CHARRIER: Excuse me, your
Honor, I object to this, this is beyond
G-38
the scope of my cross.
THE COURT: Objection sustained.
BY MR. KLEPPNER:
Q Where did the requests for work on
vessels come from?
A It came from Harvey, who is the head
master, he would tell my foreman and then
my foreman would tell us.
Q Do you know where Harvey got the
request?
A He got it from the boat captain, he
would report any difficulties or
breakdowns to hin.
Q When you went aboard the vessels,
such as your harbor tugs, who directed
you to the needed repair?
A The captain would tell me what the
problem is. I knew the boats pretty
well.
Q Were there any differences in the
G-39
amounts of work that you performed on
vessels, or were -required to perform,
according to the seasons of the year?
A Yes, sir, we had --
MR. CHARRIER: Excuse me --
THE COURT: Objection overruled. I
assume your objection to that, that was
not covered on direct and I think --
MR. CHARRIER: Well, I am objecting
by getting to it through the back door
and objecting to something that might
come by the back door that. can't come in
the front, if your Honor please.
THE COURT: No, the objection
overruled, so far.
MR. CHARRIER: Thank you.
THE WITNESS: Could you repeat it,
sir?
THE COURT: Was ther a change in
the amount of time that you spent on
G-40
vessels, depending on the seasons of the
year?
THE WITNESS: Yes, sir, we had a
Slowdown period like in January or
February, because of the cold weather up
north and the river freezing and then we
would do a lot of preventative
maintenance on the vessels.
BY MR. KLEPPNER:
Q Was Mr. Benny Borden an electrician
when you were hired at Electro-Coal?
A No, sir, Benny was ae riverboat
captain and he got promoted.
Q When the harbor tugs were in the
fleet, as you talked about on direct, or
on cross, was your crew ever required to
work on it?
A Oh, yes, sir, we would get on boats
and they would ride us down and do what
they had to do and we would be down in
G-41
the engineroom or whatever, working on
the vessel while it's in motion.
MR. KLEPPNER: Thank you, your
Honor. I have no further questions.
THE COURT: You can step down, thank
you, sir.
[59] [59]
BY MR. KLEPPNER:
Q You mentioned harbor boats, what
harbor boats were available, were you
involved with when you were at Electro-
Coal, when Mr. Pizzitolo was there?
A We worked on the Electro-Coal boats.
Q Can you name those?
A The ELECTRA, BLAIR WILSON, JENNY
HOWELL, AUDREY PEARSON.
Q Did those boats change at all, in
other words, were they there throughout
your period of employment with the
company?
A Yes, sir, ever since I been there.
Q Were any other electricians
assigned, besides your crew, to work on
those four vessels?
A Everybody in the department worked
on them.
Q My question, though, was anybody
outside of the electrical crew of
Electro-Coal charged with working on
those boats, the electrical systems of
those boats?
A Not that I know of.
Q Did you, personally -- were you
personally required to work on those
vessels at any time during your period of
employment?
MR. CHARRIER: Your Honor, may I
object to the leading question, he's
talking about assignments, requirements,
and suggestions and may I please object.
THE COURT: Go ahead.
MR. KLEPPNER: There was objection.
THE COURT: All right, counsel,
please restate the question and please
don't lead the witness. The objection
sustained.
BY MR. KLEPPNER:
Q Mr. White, did you have any
connection with these vessels, the harbor
boats?
A I had to work on them.
Q What kind of work were you required
to perform?
A We worked on winches, generators,
spotlights, day tanks, as such, mainly
anything electrical.
Q Do these boats leave the area of
Davant at any time during your period of
employment?
A With me on it, you mean?
Q No, just to be gone at all?
A Yes.
Q Do you know where they went?
A Well, they go up and pick up fuel
barges and stuff like that.
Q Were you ever required to be aboard
G-45
these vessels while they were en route,
in motion?
A No, not myself, no.
Q Do you know of anyone else in your
crew that was?
A Not exactly, no.
Q When you say not exactly, what do
you mean, please explain.
A I've known some to take trips, you
know, when they did move.
Q Was Mr. -Pizzitolo -- do you know,
personally, whether he was ever required
to work on these boats, the harbor boats,
I am speaking of?
A Yes, he did work on them.
Q Do you know whether he worked more
or less than you did aboard these boats?
A Definitely more.
Q Do you have any idea, can you tell
the jury how much more he worked than
G-46
S&S SSH eSeeeeo¢@gteekel & &
you?
A I say he worked at least two times
more than what I did.
Q Do you, personally, know why that
was so?
A Mr. Pizzitolo knew the harbor boats,
he knew the generator systems and he is a
good electrician.
Q When members of your electrical crew
worked aboard these vessels, was there
any requirement for dress or clothing?
A No, sir.
Q Was there any safety devices that
you are required to employ?
A Not that I know of.
Q Did you wear a hard hat?
Bs Oh, yes, hard hat and life jacket.
Q Were there any other boats that were
part of a group of boats that worked with
the Electro-Coal operation?
G-47
A Like Mid-South boats?
Q What were these?
A I think they are the push boats,
river boats.
Q Do you know the names?
A I think the BETTY WOOD, the MARSHA
LYNN --
THE COURT: You have got to keep
your voice up, I can't hear you and I am
Sure you can speak louder than that. It
will help us if you will, sir.
THE WITNESS: MARTHA LYNN, the BETTY
WOOD, I am not sure of the other boats.
BY MR. KLEPPNER:
Q What did those boats do?
A They pushed coal tows from wherever
they got them at into Electro-Coal, they
brought tows in.
Q Were members of the electrical crew
at Davant ever required to work on these
G-48
|
boats?
A Yes, sir.
Q Were there any other classification
of boats that were employed in Electro-
Coal operation?
A Gulf Coast.
Q What were those boats?
A Oceangoing vessels.
Q Can you tell us the name of those
vessels?
A LIBBY BLACK, I think BETTY
CULBREATH, BETTY WOOD. I am not sure of
the rest of them, either.
Q Did any members of the electrical
crew of Electro-Coal, were they ever
required to work on these boats, on the
electrical systems?
MR. CHARRIER: Your Honor, I object,
this is the third time, whether they
worked or required, that's --
)
1
49
MR. KLEPPNER: All right, let me
rephrase, your Honor, I will withdraw the
question.
BY MR. KiLEPPNER:
Q To your knowledge, did any members
of the electrical crew work on those
boats?
A Yes.
Q Did the harbor tugs that you
mentioned have any electricians -- let me
withdraw that question.
Will you state for the jury what
personnel were aboard the harbor tugs
when they were en route, or in motion.
A When they go upriver?
Q Yes.
A Captains, deckhands.
Q Were there any electricians assigned
to them, besides your crew?
A Not assigned, no.
Q Were there any barges used by
Electro-Coal in their operations?
A Yes.
Q Did any of those have electrical
systems?
A Yes.
Q Did any members of your electrical
crew, or of Electro-Coal, perform work on
those barges during your time of
employment in conjunction with Mr.
Pizzitolo?
A It was a barge called CARGO ONE,
yeah.
Q Would you tell the jury about that
work, please -- first of all, what was
CARGO ONE?
aA It was a big barge with cranes on
it. It was used to unload barges into
ships.
Q Where was it located?
G-51
A Down in the lower fleet.
Q Where was the lower fleet?
A About a half mile to a mile below
the docks at Davant.
Q In what body of water, if any?
A The Mississippi River.
Q Now, were there any electrical
systems on CARGO ONE?
A Yes, sir.
Q Do you recall when CARGO ONE joined
Electro-Coal's operations?
ay I am not sure of the exact date, no.
Q Do you have the approximate date
that you can give the jury?
A I think it was around '80, or '8l.
[68] [68]
BY MR. KLEPPNER:
Q Mr. White, did the barges that you
mentioned, CARGO ONE barge, were there
any other barges that Electro-Coal had or
utilized in the ccurse of its operations?
A Not that I know of.
Q How was the coal transported across
the ocean, do you know?
A Yes, ocean barges, yes, sir.
Q Do you know what the names of those
ocean barges were, or is?
A The MARIE FLOOD, I think the PEARL
G. JAHN, BARBARA VAUGHT, LOUISE
KIRKPATRICK, I think that was it.
Q Now, did these barges have
electrical systems?
A Yes, they have generators.
Q Was your crew required to do any
maintenance work, or did any member of
G-53
your crew perform work or maintenance
aboard these vessels, these barges?
A Not to my knowledge, I don't
remember.
Q What were the river harbor tugs used
for?
A They bring coal tows in from the
lower fleet and change them out at the
docks and bring the empties and all to
the upper fleet.
)
i
54
[77] [77]
BY MR. KLEPPNER:
Q Mr. White, where did the captains
and the deckhands on the harbor boats
live when they weren't operating their
boats?
A Electro-Coal boats?
MR. CHARRIER: Your Honor, that's
beyond the pale --
THE WITNESS: At home.
THE COURT: Objection overruled.
THE WITNESS: At their homes.
MR. KLEPPNER: I am sorry?
THE COURT: At their homes.
[83] [83]
BY MR. KLEPPNER:
Q What vessels?
A We have som¢ harbor, tugs.
Q What are their names?
A M/V JENNY HOWELL; BLAIR WILSON, the
ELECTRA and the AUDREY PEARSON.
Q Were you employed at Electro-Coal in
the electrical department ’ when Mr.
Pizzitolo was employed there?
A Yes, I was.
Q Were those harbor tugs part of the
operations at that time?
A Yes, sir.
Q What work, if any, did you ever
perform aboard the harbor tugs?
A Well, we pulled maintenance on
generators, we did some wiring, emergency
repair work, just generally maintained
the boats.
Q Did any other electricians, other
than from the Electro-Coal electrical
crew, maintain those boats electrically?
A No, sir
ad .
Q Were you ever required to work
aboard these boats when they were
underway?
A Yes.
Q I've asked you about what you were
required to do, do you know what Mr.
Pizzitolo was required to. do?
A More or less the same thing.
Q Were there any other vessels that
operated or were a part of the Electro-
Coal operation?
a If --
MR. CHARRIER: Excuse me, Mr. Rice.
Your Honor, may I object, unless
there is some predicate. Counsel, on
several occasions, referred this to this
as the electrical operation. Yet, to
bring any witness who is knowledgeable.
THE COURT: I understand your
objection, it's overruled.
MR. CHARRIER: Thank you, sir.
BY MR. KLEPPNER:
Q Could you answer the question,
please, Mr. Rice.
A Okay, you're talking about other
boats that have come to Electro-Coal, is
that --
That participated in the operations
Electro-Coal was involved in.
Well, we have the push boats that
pushed the barges down from the coal
mines and then we have the ocean tugs
that take the ocean barges to Tampa.
Q Do these vessels have any electrical
systems aboard?
A Yes, sir.
Cee a seit
Q Do you, yourself, or members of your —
crew, ever perform any electrical
maintenance,. or work aboard these
vessels?
A Yes.
Q Were there any barges involved with
the Electro-Coal operations?
A We had one barge, big barge that
maybe I am -- if I read you correctly,
what you are asking about is CARGO ONE?
Q I asked you about any barges, were
there any barges?
A Yes, sir.
Q What was CARGO ONE?
A It was a barge with two cranes on
1%.
Q And when was it involved with the
Electro-Coal operation at Davant?
A I am not really sure of the year it
was, I think it was around 1980.
G-59
Q About there, or '79?
A Or '79, or '80, I believe.
Q Were there any electrical systems
aboard this barge?
A Yes, sir, they got generators.
Q Did you have occasion to work on
that barge, on its electrical systems?
A Yes, sir.
Q Did any other members of your crew,
including Mr. Pizzitolo, have occasion to
work on that barge?
A Yes, sir.
Q Can you tell the jury what was
required, or what work was performed?
A Well, when we received the barge
there was no lights or anything like that
on the barge, so we had to put lights so
that the cranes could see what they were
doing, you know. But, where they put
them was on the outside deck of the barge
and we ran several different systems
‘@
before we got something that finally
worked.
Q Did you participate in that work?
A Yes, sir.
Q How long did it take?
A Well, there was three different
times that we had to change lighting
systems. The first time we ran it like
an extension cord cable, and that took
about three, or four days, I think, ‘and
that didn't last, so we had to go back
with conduit, I believe. And then, they
knocked that down and we come back with
conduit again and we finally covered that
with angle iron so that that would last.
Q Where was all that work performed?
A On the barge.
Q Where was the barge when that work
was performed?
On the river.
THE COURT: What year was that, when
was that done?
THE WITNESS: I believe that was
or. "SO, Oar.
BY MR. KLEPPNER:
Q Did you ever have occasion, after
those projects, to perform any work or
maintenance, electrically oriented, on
that barge? When I say you, I mean you,
Or any member of your crew.
A Perform work?
Q Yes.
Yes, sir.
Q What sort of work?
A
Well, we would replace the lights.
The cranes, when they would swing, would
generally destroy the lights, so we had
to replace several lights and do
Maintenance on the generators,
maintenance on the lighting inside the
little cabin.
Q Where was all of that work
performed?
A On the barge.
Q Where was the barge when all that
work was performed?
A In the river.
Q Was any other person, other members
of your electrical crew charged, or not
charged with, did any other persons,
other than members of your electrical
crew, during your time with the company,
perform electrical maintenance and work
aboard CARGO ONE?
x I don't recall anybody else working
on it.
Q Were you ever required to work
aboard the harbor boats when they were
underway, in motion?
A Yes.
Q Did that occur at any time when Mr.
Pizzitolo Was employed at Electro-Coal?
A Yes.
Q Did you ever take meals aboard any
of the boats that you ever worked upon?
A Yes, sir.
When and which ones?
A The push boats, that's the river
boats, not the harbor tugs, but the big
river barges, or river boats would
usually feed us if we were working there.
Q What other personnel worked with the
harbor boats, besides your electrical
crew?
a The mechanical crew.
Who were they?
A Well, the welders and the fitters
and the diesel mechanics.
Q What about the movement of the
'
.
j
boats, who handled that?
A Well, that was Harvey.
Q Okay, but let's take a given tug,
the ELECTRA, who ran the boat?
A You mean the pilot?
Q Well, is that who it is?
A Right.
Q When the boat was in motion, who
usually was aboard?
A The pilot and the deckhand.
Q If there were electrical problems,
who was usually aboard?
an The pilot, the deckhand and the
electrician.
Q Where did the pilot and the deckhand
go at the end of the shift, where did
they stay?
A I am not sure I follow you on they
went home.
Q Did they sleep aboard the boat?
G-65
A No.
Q Did the electrician sleep aboard the
boat?
A No.
Q When you were working on CARGO ONE,
where did you take your meals?
A Well, that was generally we ate in
our lunch room, we got stuck out there or
we knew we were going to be out there for
any length of time, we would eat on the
barge.
[113] (113)
BY MR. KLEPPNER:
Q Would you describe what items of
equipment, without going into
tremendously minute detail, that was
involved, that you and your crew, and
specifically Mr. Pizzitolo, were involved
with electrically during your employment
with Electro-Coal.
A We worked on all phases of
electrical equipment. We worked on the
various vessels on the terminal, we
worked motors, starters, electrical
motors, controls, lights, switches, on
the engines. We worked the fuel pressure
switches, the temperature switches. We
used monitoring systems, we installed
them, we did everything to the system
that had any kind of electricity or
G-67
electrical components to them, sir.
Q You mentioned vessels, what vessels
did you do work on?
A All the vessels that were moored, or
used at Electro-Coal, sir.
Q Can you name any of those?
A Yes, sir, with Mid-South, we did all
the big white line boats, we used the--
I believe they were the GIRLIE KNIGHT,
the JULIA WOODS, the ELEANOR GORDON, the
MARTHA LYNN, at Mid-South Towing. The
Mid-South Towing vessels were the line
boats. The Mid-South boats that were
stationed at the terminal, itself, we had
the BLAIR WILSON, the JENNY HOWELL, the
AUDREY PEARSON, the ELECTRA, and the
BLAIR WILSON.
Q Let's start with the last group you
mentioned, the harbor tugs that were
stationed there, what work did you
perform or did the crew that you had
knowledge of, the electrical crew perform
on those vessels?
A We worked on everything, sir.
Q Can you describe for the jury what
systems involved electrical work aboard
those four vessels?
A The vessels could not work at all,
could not even function as a unit without
the electrical systems. We had
electrical motors that turned on the
hydraulic pumps, we had electric motors
that drove the air compressors. We had
the lighting, the controls, the alarm
systems we call the enunciators. We
worked the fire systems. We worked all
the associated lighting, controls, just
about anything on the boat that had
electrical wires to them, we maintained
and worked on, worked on regularly.
G-69
Q Did anyone else, during the course
of your employment at Electro-Coal, do
electrical work aboard those harbor tugs?
A Not to my knowledge, sir.
Q Did you ever have to work on these
vessels when you were underway?
A Yes, sir, I sure did, sir.
Q To your knowledge, did Mr.
Pizzitolo, or other members of the crew,
work aboard these vessels when you were
underway?
A Yes, sir, it was, more or less, a
normal routine thing we did, sir.
Q What, if any safety equipment were
you required to wear when you were aboard
these vessels?
A Just a hard hat and life preserver,
sir.
Q Do you know why you were required to
wear a life preserver?
A It was a stated commitment any time
we went over the levee to maintain hard
hat. Well, we had to maintain hard hats
all the time, but anything over the levee
system we had to wear our personal safety
device and our life jackets.
Q Do you know why that was required?
A No, sir, I didn't question why, it
seemed logical to me, sir.
Q Why was it logical?
nN Well, you working over water, if you
fell or slipped, or hit your head, you
had some means of flotation.
Q Who, from time to time, did you
receive your orders from when you were
required to work aboard vessels?
A Manuel Guerra, the electrical
foreman, Carl Rotolo, who is assistant
foreman, sir.
Q Well, let me ask you, was your work
G=71
aboard these harbor tugs which you would
Classify regular, occasional, or routine,
Or any other term you would like?
THE COURT: Objection sustained.
BY MR. KLEPPNER:
Q Do you have any idea of how often
you were required to work aboard the
harbor tugs?
A On the average, I would have to say
once, or twice a week on the average,
sometimes more, sometimes a little
lesser.
Q Were there any other vessels that
you were required to work aboard?
A We did work on the Gulf Coast
transit vessels.
Q Which were these, do you recall the
names?
A The LIBBY BLACK, the ELLINA HICKS,
the CATHERINE CLEWIS, the BETTY
G-72
CULBREATH. I am not sure of the rest of
them, sir.
Q Did these vessels have electricians
aboard?
A No, sir, they did not.
Q Were there any other vessels
involved with the Electro-Coal operation
that you worked aboard, or your crew
members?
A I am not sure on that, sir.
Q Were there any barges involved with
the Electro-Coal operation that you
worked aboard, or your crew worked
aboard?
A Yes, sir, it was CARGO ONE, sir.
Q Could you tell the jury what, if
anything, you did on that?
A CARGO ONE took us, looked like a
converted ocean barge that they had
mounted cranes on, sir, and we maintained
G-73
the onboard lighting and the generation
system for the lighting on that
particular vessel.
Q What kind of work did you do aboard
the river tugs?
A Routine maintenance and preventative
maintenance, sir.
Q Did you ever take meals aboard any
of the vessels that you worked aboard?
A Yes, Sir, regularly when I worked on
line boats, sir.
Q What do you call a line boat?
A The big white push boats’ that
brought the coal down from the mine down
to the terminal, sir.
Q Was there any work beyond regular
maintenance that you ever did on those
line boats?
A In what aspect, sir?
Q Any kind of aspect, any sort of
G-74
——oOeeeee
electrical work?
A Sure, yes, sir, on several occasions
we were asked or told, not really asked,
we were directed to go out and install
ship-to-shore power reduction
transformers on the line boats. I worked
with Mr. Sonny Aguillar, who was the
plant electronics repair person, that we
went around a couple of times changing
receptacles around where you could change
the scanners. I, personally, along with
Nick Pizzitolo, we put in, I believe it
would be the better term would be
collision avoidance systems to free the
pilot up so when if he ever got into a
position of a collision, all he would
have to do is hit a particular button or
a knob on the dashboard of his console
which would automatically throw the
vessel with the big blast on the air horn
G73
into a condition which would tell all the
vessels that a collision is imminent and
he could free his hands up to take
evasive maneuvers with his rudders and
his tillers.
Q Do you know how long that project
took you?
A Very first vessel we had to feel our
way around it, took us about’ three
consecutive days.
Q Were these vessels afloat, or on
drydock when you did this work?
A They were in the river, sir, tied
up.
Q And the barge, the CARGO ONE, I may
have already asked you this, was it
afloat?
A Well, it was moored about a mile or
mile and a half down from the terminal,
sir.
[127] [127]
BY MR. CHARRIER:
Q In fact, sometimes days passed and
sometimes weeks passed when you didn't
work on the vessels?
A Not really, sir. When we used the
MV -- well, around the dock which is
"unconditioned maintenance boats" you
would get on it to go, say bring
materials from the finger dock to the No.
2 dock. When your illustration where the
unloading cranes were, it would be
numerous times the boat captain would
holler out, mind coming up here looking
at my switch for me, you know, even
though it would be a minor problem, you'd
still do some aspect of a repair job,
éven at that time you were not really
assigned to do a job. It was just common
G-77
nature, we tried to help everybody else
out, they helped us out. We needed a
harbor boat, they would come pick us up.
But, when I were running they had a
problem, we tried to repair it for them
with minimum down.
[133] [133]
BY MR. CHARRIER:
Q You mentioned some work that was
done while you rode the boats, you were
referring, I presume, to riding the boats
when you left from the dock and went to
the upper fleet, or the lower fleet, on
either one of the line boats, or on the
oceangoing tugs?
A No, sir, it was line boats, or the-
- I have did both the line boats which
are the big white push boats and the
harbor boats, sir, I have worked on while
under tow.
Q But, you have worked on them while
they were there in the area of the dock,
is that right, sir?
A Yes, sir, and I have worked on in
transit upriver.
Q That was on occasion when you got
caught on the AUDREY PEARSON, which is
one of the larger boats and you didn't
know it, you were working below deck and
she was bound north in the river at the
time that Hurricane Frederick was coming
on, is that right?
A Correct, sir.
Q That was the only occasion that you
ever got a ride north up the river on one
of the harbor boats, is that right?
A Correct, sir.
[158/159] [159]
BY MR. CHARRIER:
Q Who would be calling?
i The boat captain, or the harbor
master.
[173] [173]
BY MR. KLEPPNER:
Q Mr. Guerra, would you tell the jury
the names of the harbor tugs when Mr.
Pizzitolo worked for your company.
A The ELECTRA, JENNY HOWELL, AUDREY
PEARSON and BLAIR WILSON.
Q During that period of time, there
was no other group, or crew, responsible
for the electrical maintenance and repair
of those vessels, other than your crew,
was there?
A No, sir, we took care of whatever
work was required.
Q Speaking, now, of the harbor boats,
are you familiar with the front winches?
A Yes, sir.
Q They are electrical, aren't they?
A Sure.
Q What do they do?
A They tie the push boats to the
barge.
Q The function of the push boat is to
maneuver the barges into place for
loading and unloading, isn't it?
A That's correct.
Q Would you agree that without the
barges in position, Electro-Coal's
operations could not continue, would that
be correct?
A Since the cargo is in the barge,
yes, sir.
Q And the four harbor tugs were the
motivating power for those barges, is
that correct?
A That's correct.
Q These winches that were electrical,
were the tools by which these barges were
hooked up and moved, were they not?
G-83
And if these winches weren't
working, the barges wouldn't get moved,
would they?
A Unless you do it manually.
Q How would you do it manually?
A Tie ropes on them.
Q Was the operation at Electro-Ccoal
twenty-four hours a day?
A Twenty-four hours a day.
Q Was there deck lighting on these
harbor boats?
A Yes, sir.
Q Was that electrical?
A Yes, sir.
Q Your crews maintained that?
A The deckhand would change some of
the light fixtures. When there was a
problem with the fixtures, then we would
repair it, yes, sir.
Q And to back up to those winches, did
your crews maintain those winches?
A When we were called, yes, sir.
Q Did they check the blocks, what we
call the blocks and brakes on these
winches?
aA If they had to repair them, they
would check them.
Q As a matter of fact, that was a
common problem with these winches, wasn't
it?
A You could call it a problem, yes.
Q Did you perform the maintenance and
work aboard the harbor vessels, yourself?
A Years ago, when I had my tools, yes,
Q When did you stop doing that?
a When I became a supervisor.
Q How long before Mr. Pizzitolo left
did you stop doing that?
G-85
A Oh, I don't know from time to -- [
would grab a tool or two and
refamiliarize myself with it. But, I
hadn't worked with my tools since I've
been a supervisor.
Q Give us the date, again, please,
when you became a supervisor.
A In '73. A
Q So, from 1973, until Mr. Pizzitolo
left in March, of 1982, you seldom worked
aboard vessels with tools, is that
correct?
A From time to time, I would, but I
wouldn't work with my tools, I would be
with them. Fa
Q Most of the time, however --
a Most of the time.
Q An electrical crew was sent to the
vessel to do the job and you stayed on
Shore and told them where to go to it?
G-86
A That's correct.
Q Looking again at these harbor boats,
in addition to the front deck winches,
the deck lighting, is it not true that
you had read deck refueling station that
required maintenance and repairs?
A Yes, sir.
Q And also were there hydraulic pump
starters that control the steering of
these vessels?
A Steering of the vessels, yes.
Q Now, if these vessels couldn't be
steered, were they able to move the
barges into place?
A Not at all.
Q There were day fuel oilers involving
starters and sensors, were there not,
aboard these vessels?
A Pardon?
Q Were there day fuel oilers that had
G-87
starters and sensors aboard these
vessels?
A Yes, sir.
Q These were electrical, were they
not?
A Yes.
Q And your crew maintained them and
repaired them regularly, did they not, is
that correct?
A Yes.
Q There was a day water tank,
engineroom lighting, is that correct?
A That's correct.
Q All electrical controlled, right?
A That's correct.
Q All required maintenance and repairs
by your electrical crew, did it not?
A Yes.
Q There were also engineroom--
correction, starboard and port
\— oo bo co P3 ee ee cd Be a ae me Bd aS pF — 4
generators, weren't there?
A Yes, sir.
Q With controls.
A Regulators, yes, sir.
Q Now, these generators required
periodic cleaning out and washing down,
did they not?
A From time to time when they needed
at.
Q That's a common problem with
generators, isn't it?
A In some cases it was, yes, sir.
Q Well, let me ask you this, sir, when
a generator runs for a certain period of
time, does it not reach a point when it
requires cleaning, new brushes?
A Yes, sir.
Q Wouldn't you consider that routine
maintenance?
A If it agrees with the manufacturer's
G-89
recommended period of, you know,
inspection, or whatever it is.
Q In other words, sometimes it would
happen sooner and sometimes later than
the manufacturer guessed, is that right?
A That's right, probably sometime it
would.
Q But, it's bound to happen?
A Sooner or later.
Q Whenever it happened, your
electrical crew had to do it, they had to
repair it?
A That's correct.
Q Not to belabor the point, I am just
going to read to you a list of additional
ones to those I just gave you and I will
ask you if you agree all these electrical
systems were aboard the harbor boats and
required your crew's’ attention for
maintenance and repair. I will read this
G-90
list to you and I will ask you to tell me
among them any that did 0not: air
compressors and controllers, alarm units.
THE COURT: I'm going to tell you
just like I told Mr. Charrier, don't make
your list long, because anything that's
electrical on the boat the man _ said
occasionally his people would have to do
some work on. Just like I cut him off,
didn't let him describe every electrical
motor in the plant, we could be here for
weeks. I am not going to let you talk
about every electrical thing on the
vessels. So, just suffice it to say
those things on the vessels your people
did some maintenance on.
BY MR. KLEPPNER:
Q With a shutdown electrical system
aboard a harbor tug, could it carry out
its function of moving the _ barges,
G-91
holding them in place and holding boats
and ships in place, let's say, first of
all, after dark?
A I didn't understand the question?
Q With the electrical system shut
down, if the electrical system in your
harbor boats failed, went out, failed
completely, could those harbor boats move
barges around at night or hold ships in
place at the dock for loading?
A No, sir, it would be inoperative.
Q Mr. Guerra, there were times, were
there not, when your crews were required
to perform maintenance, or repair tasks
aboard harbor boats when they were
underway?
A There were if they were minor
repairs, like light fixtures, or
something in the pilot house, or if it
was major, they would have -- we had to
G-92
i”
le
establish a policy that if it was a major
deal they would have to tie the boat up.
Q But --
A You are finished your answer?
A But, if it was something minor, they
probably could do it on the way.
Q But, you weren't out there every
time your crews went out there to see
whether they did it, whether underway, or
not?
A Well, it was company policy and it's
supposed to be established.
Q If any of your employees, or former
employees testified that despite company
policy, frequently repairs were made
while vessels were underway, would you
agree that that could be possible?
MR. CHARRIER: Your Honor, I object
to asking the witness to comment on
somebody else's testimony, 2t‘s. an
G-93
improper question.
THE COURT: No, the objection
overruled.
THE WITNESS: Sir, could you refresh
my memory?
THE COURT: If someone else has
testified, some other former employee,
that on occasion they did work when a
vessel was underway, other than the minor
work that you described here, are you in
position to say whether that's accurate,
or not?
THE WITNESS: I have no way of
telling what they did.
BY MR. KLEPPNER:
Q Because you weren't aboard?
A That's correct.
[183] [183]
BY MR. KLEPPNER:
Q You were asked by Mr. Charrier
whether or not your electrical crew
punched time clocks when they came on
duty and left, were you not, do you
remember that question?
A Yes.
Q To your knowledge, did the captain
and deckhand aboard the harbor boats
punch time clocks when he came on duty,
or when they left?
A I am not aware of that department's
procedures.
Q They did go home to their homes when
they finished, just like your electrical
personnel did, didn't they?
A The boat captains did, yes.
Q How about the deckhands?
G-95
A The deckhands, too.
Q With regard to the river tugs, the
white boats, the line boats, I think they
are called, is that right?
A Yes, sir.
Q When they were in your area, the
Davant area, is it not correct that
electrical problems were referred to your
crew to be dealt with?
A If the chief engineer and assistant
engineer could not handle it, or needed
assistance, or parts.
Q Neither the chief engineer, nor
assistant engineer were electricians on
these boats, were they?
A Not electricians as we are
classified.
-Q There were no electricians aboard
these boats, except your people, when
they went aboard, when the ship was in
G-96
the Davant area, were there?
A When they were called upon yes, sir.
Q And frequently, tell me this, at
times when your electricians went aboard
these line boats, were they not fed a
meal?
A When they went by, yes, sir.
Q The river tugs were specifically
identified, weren't they, as the ELEANOR
GORDON, the JULIA WOODS, the MARTHA LYNN,
the GIRLIE KNIGHT, is that right?
A Yes, sir.
Q That was the fleet, is that right?
A That was the fleet, yes, sir.
Q And the fleet of ocean tugs, that
consisted of the LIBBY BLACK, the BETTY
WOOD, the ELLINA HICKS, the SARAH HAYES,
the BETTY CULBREATH, and the CATHERINE
CLEWIS?
A That's right.
)
1
97
MR. CHARRIER: Just a minute, your
Honor, I object to counsel using this
word in this context, in a legal context
which is precisely what counsel has
characterized the fleet, Suggesting that
mM
n
i
a
THE COURT: Well, the objection is
overruled.
MR. CHARRIER: Thank you, sir.
BY MR. KLEPPNER:
Q That was the fleet of ocean tugs,
wasn't it?
A Yes, sir.
Q These two groups, or fleets of
vessels, the river tugs and the ocean
tugs all functioned as part of the moving
operation of Electro-Coal, did they not?
A Yes, they carried coal to and from
Electro-Coal.
)
1
98
Q When the ocean tugs were in the
Davant area, and experienced electrical
problems, your crew was sent aboard to
correct it, was it not?
A At times, yes, sir.
Q And those ocean tugs did not have
any electricians aboard, did they, other
than your crew?
A No, sir, just the engineers and
assistant.
|
{
APPENDIX " H "
ORDER EXTENDING TIME TO FILE PETITION
FOR WRIT OF CERTIORARI
SUPREME COURT OF THE UNITED STATES
SUPREME COURT OF THE UNITED STATES
NO. A-256
NICHOLAS R. PIZZITOLO,
APPLICANT
V.
ELECTRO-COAL TRANSFER CORPORATION
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the
application of counsel for petitioner,
IT IS ORDERED that the time for
filing a petition for writ of certiorari
in the above-entitled cause be, and the
same is hereby, extended to and including
November 4 __, 1987.
/s/_ Byron R. White
Associate Justice of the
Supreme Court of the
United States
mod
Dated this 29th
day of September , 1987.
BBE REEEERBEREREEES
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.