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

Wee. a, VA ae =< as,

In The \

Supreme Court of the United States

October Term, 1987

re’

Vv

NICHOLAS R. PIZZITOLO,

Petitioner,

vs,

ELECTRO-COAL TRANSFER CORPORATION and

NATIONAL UNION FIRE INSURANCE COMPANY,

Respondents.

fy

Vv

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

>

RESPONDENT'S BRIEF IN OPPOSITION

fy

Vw

Joun O. CHarrier, JR.

JEANMARIE Lococo

Jones, WaLKER, WAECHTER,

PorrEvENT, CARRERE & DENEGRE

50th Floor

201 St. Charles Avenue

New Orleans, LA 70170

Telephone: (504) 582-8000

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2 1

QUESTION PRESENTED

Whether the Court of Appeals for the Fifth Circuit

was correct in affirming the District Court’s judgment

notwithstanding the verdict on the issue of Petitioner’s

lack of seaman status for the purpose of asserting a remedy

under the Jones Act, 46 U.S.C.A. 688.

ul

Z TABLE OF CONTENTS

Page

(eestion Preeekied eee i

Table of Contents ....................... “cig kipsphclagaecaidieiaaeaticng an li

Tale of Anthonites ..W.... ee ill

Statement. of the Case. cc. coc 1

Reasons for Denying the Writ or, Alternatively for

Summary Disposition Affirming the Decisions of

ee Se OW a eee

ey. eenennlnie Hes hirer meanr oie enn nas OE mueceren =n E a

I. No Special and Important Reasons Exist to

Crent Cerbacr ere soci ccwictciusoetcune eee

II. No Conflict with the Decisions of this Court

TRO ARNON Mr Kms A eae!

III. The Decision of the Court of Appeals is Cor-

rect Under the Robison Test occa... ccccccccscccccnssss:

CSO i i ee ee

Appendix: Listing of Parent, Subsidiary and Affiliate

Companies of Electro-Coal Transfer Corporation

Pursuant to Supreme Court Rule 28.1 oe

iil

TABLE OF AUTHORITIES

Page

CaSEs:

Abshire v. Seacoast Products, Inc., 668 F.2d 832

ae ae 12

Balfer v. Mayronne Mud & Chemical Co., 762 F.2d

EEA ce ne ee ee 8

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

SECA ATT 10, 12

Bazile v. Bisso Marine Co., 606 F.2d 101 (5th Cir.

1979), cert. denied, 449 US. S| are 11

Bertrand v. International Mooring & Marine, Inc.,

Toe eae oe (oe Cir, 1968) 10, 11

Billings v. Chevron U.S.A. Inc., 618 F.2d 1108

a ia a I ee 10

- Boeing Company v. Shipman, 411 F.2d 365 (5th

I i cchuclchet nlacomneiniame 3

Bouvier v. Krenz, 702 F.2d 89 (5th Cir. 1983) 0. 11

Buras v. Commercial Testing & Engineering Co.,

Tae fae oer toe Ore, t964) 8, 11

Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734,

Se ga En nN 9

Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. _— 37

L.Eid.2d 522 (1973) 3

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

2 eee oe, Oe ine, 200 (7952) 9

Director, OWCP v. Perini North River Assoc., 459

U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983) ............ <6 oe

Fazio v. Lykes Bros. S.S. Co., 567 F.2d 301 (5th

TE ee le ee 2

Galloway v. United States, 319 U.S. 372, 63 S.Ct.

SE 6, ENA aaa PaO 3

iv

TABLE OF AUTHORITIES—Continued

Page

Gianfala v. Teras Co.. 350 U.S. 879, 76 S.Ct. 141,

100 L.Ed. 775 (1955) ____ a

Golden v. Rowan Companies, Inc., 778 F.2d 1022

(th Cir. 1966) pret aa eee tere: 3

Grimes v. Raymond Concrete Piling Co., 356 U.S.

253. 78 8.Ct. 687. 2 L.Ed.2d 737 (1958) —__ 9

Guidry v. Continental Oil Co.. 614 F.2d 447 (5th

Ot yf Re IS Prien ee A 11

Jones v. Mississippi Grain Elevator Co., 703 F.2d

108 (5th Cir. 1983), cert. denied. 464 U.S. 856 0... 11

Keener v. Transworld Drilling Co., 468 F.2d 729

2 Oe... eam aaeaty eeiobie eer ru eh neu me er 10

Kirk v. Land & Marine Apnlicators, Inc., 555 F.2d

re Ct Ee Bink a ee a es 11

Layne & Bowler Corp. v. Western Well Works,

Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712 (1923) .. 3

Lonamire v. Sea Drilling Corporation, 610 F.2d

See foun Cah, fee. ta ea

Miller v. Rowan Companies, Inc., 815 F.2d 1021

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

649 (5th Cir. 1985), cert. denied, 475 U.S. 1050

II eck, sctcescoancn pa aces cette ace ee 4,12

Northeast Marine Terminal v. Caputo, 432 U.S.

249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) ae 8

Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747,

ge ee | | REN Le een 7

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

Cir. 1959)

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

9 S.Ct. 645, 58 L.Ed.2d 552 (1979)

TABLE OF AUTHORITIES—Continued

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955)

Senko v. LaCrosse Dredging Corp., 352 U.S. 379,

77 S.Ct. 415, 1 L.Ed.2d 404 (1957) ......

South Chicago Coal & Dock Co. v. Bassett, 309

U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940) ..........

Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66

S.Ct. 869, 90 L.Ed. 1045 (1946) .........

Thomas v. Peterson Marine Service, Inc., 411 F.2d

592 (5th Cir. 1969), cert. denied 396 U.S. 1006

‘} . AeURERee

Victory Carriers, Inc. v. Law, 404 U.S. 202, 92

S.Ct. 418, 30 L.Ed.2d 383 (1971)

Wallace v. Oceaneering International, 727 F.2d

497 (5th Cir. 1984) .

3,11

White v. Valley Line Company, 736 F.2d 304 (5th

CRs SNE cereiandotnines

STaTUTE:

Ue 1

OrHER AUTHORITIES:

Robertson, ‘‘Current Problems in Seaman’s Rem-

edies: Seaman Status, Relationship Between

Jones Act and LHWCA, and Unseaworthiness

Actions by Workers Not Covered by LHWCA,”’

45 La.Law Rev. 875 (1985) ..

STATEMENT OF THE CASE

The facts of the case are stated in the opinion of the

Court of Appeals, 812 F.2d at 978-979 (Petitioner’s Ap-

pendix A, pp. A-6 through A-9).

REASONS FOR DENYING THE WRIT OR

ALTERNATIVELY, FOR SUMMARY

DISPOSITION AFFIRMING THE DECISIONS

OF THE COURTS BELOW

I. Petitioner has not demonstrated any ‘‘special and

important reasons’’ warranting the exercise of this

Honorable Court’s discretionary power of review, as

described in U.S. Sup.Ct.Rule 17, 18 U.S.C.A.

II. The decisions below are in full accord with the prin-

ciples expressed in decisions of this court, and the

Court of Appeals correctly interpreted the Long-

shore and Harbor Workers Compensation Act (LH

WCA) in holding that coverage under the LHWCA

and the Jones Act is mutually exclusive.

Ill. The decision of the court of appeals is correct as sup-

ported by the leading case on the issue of seaman

status, Offshore Company v. Robison, 266 F.2d 769

(5th Cir. 1959), and its progeny.

co)

ARGUMENT

I. No Special and Important Reasons

Exist to Grant Certiorari

Noticeably absent in Petitioner’s papers is any direct

statement of the ‘‘special and important reasons’’ which

1

ordinarily ought to be offered in support of this Court’s

discretionary power of review. U.S. Sup.Ct.Rule 17, 18

U.S.C.A. Such reasons are absent from the petition and

absent in fact. Certainly there is no conflict among the

federal courts of appeal on this issue; neither does this

case present an undecided question of federal law; nor

does the decision of the Court of Appeals conflict with

applicable decisions of this Court.

While Respondent recognizes that the reasons enumer-

ated in Rule 17 are not unqualifiedly controlling and do

not fully measure this Court’s discretion, implicit in Rule

17 is the directive that there must be reasons of similar

character to warrant the granting of certiorari. This Court

has described the necessary reasons as follows:

A federal question raised by a petitioner may be ‘‘of

substance’’ in the sense that, abstractly considered, it

may present an intellectually interesting and solid

problem. But this Court does not sit to satisfy a

scholarly interest in such issues. Nor does it sit for

the benefit of the particular litigants. [Citations

omitted.| Special and important reasons imply a

reach to a problem beyond the academic or the episo-

dic. This is especially true where the issues involved

reach constitutional dimensions, for then there comes

into play regard for the Court’s duty to avoid decision

of constitutional issues unless avoidance becomes eva-

sion.

Rice v. Sioux City Memorial Park Cemetary, 349 U.S. 70,

74, 75 S.Ct. 614, 616, 99 L.Ed. 897 (1955). Certiorari should

not be granted ‘‘except in cases involving principles the

settlement of which is of importance to the public, as dis-

tinguished from that of the parties,’’ and where ‘‘there is

a real and embarrassing conflict of opinion and authority

3

between the Circuit Courts of Appeal.’’ Jd. at 79, quoting

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712 (1923).

Reasons similar to those described above are absent

in this ease. Instead, the petition apparently rests on the

grounds that (1) since in most cases questions of seaman

status should be determined by the jury, and (2) since in

this case the trial judge allowed the jury to consider the

issue, and (3) since, thereafter, the trial judge granted a

judgment notwithstanding the jury’s verdict, the jury ver-

dict had a sanctity beyond the reach of settled law. How-

ever, it is plain that status issues come in for no special

treatment on motions for directed verdict or judgment

n.o.v., and such a motion is well taken when there is no

reasonable evidentiary basis for the jury finding.. Senko

v. La Crosse Dredging Corporation, 352 U.S. 370, 374, 77

S.Ct. 415, 1 L.Ed.2d 404 (1957); Golden v. Rowan Com-

panies, Inc., 778 F.2d 1022 (Sth Cir. 1985); Wallace v.

Oceaneering International, 727 F.2d 421, 431-432 (5th Cir.

1984) ; Boeing Company v. Shipman, 411 F.2d 365, 374-375

(5th Cir. 1969) (en banc).

This Court has long held that the mere right to jury

trial does not negate the authority of the federal courts

to direct a verdict or enter judgment n.o.v. for insufficiency

of evidence. Galloway v. United States, 319 U.S. 372, 389,

63 S.Ct. 1077, 1086, 87 L.Ed. 1458 (1943); See also, Park-

lane Hosiery Company, Inc. v. Shore, 439 U.S. 322, 99 S.Ct.

645, 58 L.Ed.2d 552 (1979); Colgrove v. Battin, 413 U.S.

149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973). Although Petition-

er asserts otherwise, a jury’s discretion to find a worker

‘“a member of a crew’’ is no greater than its discretion to

4

decide any other factual issue. In short, no case of this

Court suggests that jury verdicts on status have greater

sanctity than jury decisions of any other issue.

Indeed, this Court -recently denied certiorari where

precisely the same issues presented here were at stake. In

Munguia v. Chevron Company U.S.A., 768 F.2d 649 (5th

Cir. 1985), cert. denied 475 U.S. 1050, 106 S.Ct. 1272, 89

L.Ed.2d 580 (1986), the plaintiff was employed as a roust-

about in an oilfield consisting of six platforms located

near the Mississippi River and accessible only by water.

A number of small vessels provided transportation for

workers and equipment in the field. Munguia’s duties in-

cluded working at a group of oil storage tanks called a

tank battery. When he was not assigned there, he was

required to work on the actual oil wells which also were

only accessible by boat. Munguia traveled to the wells by

boats which he piloted and for whose maintenance he was

sometimes responsible. As in this case, the percentage of

time spent by Munguia working on vessels, as opposed to

land-based work, was an important consideration. Al-

though the plaintiff testified that more than 90% of his

activities involved piloting and working with the boats, his

testimony was contradicted by other witnesses.

The jury found that Munguia was a seaman and ren-

dered judgment in his favor. The District Court entered

judgment n.o.v., the Fifth Cireuit affirmed, and this Court

denied certiorari. Mungima, 475 U.S. 1050. The Court of

Appeals based its decision on the fact that the plaintiff’s

assignment to any particular vessel was random, was not

on a continuing or regular basis, and was not substantial

in point of time and work. In affirming the judgment not-

withstanding the verdict, the Fifth Cireuit stated:

4)

The jury might have found, that as contended by Mun-

guia, his work required the ability to pilot a small

boat and ‘‘more than rudimentary’’ knowledge of the

operation and maintenance of the craft, that he had

to know about currents in the river to navigate prop-

erly, and that he faced the vicissitudes of storm, in-

jury and death while on the waters he traveled. But

these are not the specific criteria by which it is de-

termined that a worker is a member of the crew of a

vessel. The Robison criteria are threefold: whether

the worker performs a substantial amount of his work

aboard a vessel; whether he is assigned more-or-less

permanently to a vessel or identifiable fleet of ves-

sels; and whether his duties contribute to the mission

of the vessel.

Munguia’s work fails to meet at least two of three

criteria: (1) he was not assigned to a fleet of vessels:

instead the vessels were randomly assigned to him as

a means of performing his work of servicing plat-

forms and (2) he did not perform a substantial part

of his work on the vessels. 768 F.2d at 653.

Likewise, as is more fully discussed in Section ILI, infra,

Pizzitolo was not a member of the crew of any fleet of ves-

sels. Rather, he was a land-based worker assigned to per-

form electrical repairs on any and all electrical equipment

on the premises of Electro-Coal’s facility, and only 25 per-

cent, at most, of his work consisted of electrical repairs on

vessels.! Understandably, Petitioner makes no reference

to this Court’s refusal to grant certiorari in Munguia. The

case does, however, control this one: Judgment n.o.v. is

: See also, Miller v. Rowan Companies, Inc., 815 F.2d 1021

(5th Cir. 1987) in which the Fifth Circuit affirmed a judg-

ment n.o.v. on the ground that the plaintiff failed to pre-

sent a sufficient evidentiary basis for the jury to find that

he was permanently assigned to, or performed a substan-

tial part of his work on, the vessel.

indeed proper in status cases and none of the ‘‘special and

important reasons’? required by Rule 17 exist here. This

Court should refuse certiorari.

II. The Decisions Below Do Not Conflict With

the Decisions of This Court.

In seeking certiorari, Petitioner asserts the Court of

Appeals engaged in ‘‘semantical distinetion’’ and glaring

and grievous misinterpretation when it found him covered

by the Longshore & Harbor Workers Compensation Act,

33 U.S.C. § 901, et seq. (AHWCA), and not by the Jones

Act. Hardly so! The Court of Appeals simply found that

Pizzitolo was a traditional harbor worker and plainly fell

in that category of laborer which the Act expressly identi-

fies as a ‘‘ship repairman’’. Petitioner, after all, was a

shore-based worker whose major assignment was mainten-

ance of a shore-side plant and who only performed electri-

cal repairs on vessels from time to time.

In this Court, Petitioner, as he did with the jury, nar-

rowly focuses on certain isolated facts, choosing to present

only those facts which emphasize his connection to the ves-

sels he sometimes repaired. Petitioner’s argument is remi-

niscent of the Indian folktale of the six blind men and the

elephant. Each, unable to see the whole, made a limited ex-

amination of the elephant’s anatomy and gave a wrong de-

scription. The District Court, constrained as it was by

law to see with a full focus, rejected the narrow bead Piz-

zitolo drew on the facts and granted judgment n.o.v. The

Fifth Cireuit Court of Appeals correctly affirmed that

ruling. It correctly also found that, in any event, viewed

from any vantage point, Petitioner was a traditional har-

bor worker statutorily defined by the-LHWCA as a ship

ae eT

repairman, and one who, therefore, was not covered by

the Jones Act.

The decision below is correct and is in full accord with

the decisions of this Court. It is well-settled that the

remedies of an employee covered by the LHWCA and

those of a seaman are mutually exclusive. Victory Car-

riers, Inc. v. Law, 404 U.S. 202, 212, n. 12, 92 S.Ct. 418, 425,

n.12, 30 L.Ed.2d 383 (1971); Swanson v. Marra Brothers,

Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946) ; Norton

v. Warner Co., 321 U.S. 565, 570, 64 S.Ct. 747, 750, 88

L.Ed. 931 (1944). The decision of the court below was

nothing more than a reiteration of the clear line of demar-

cation established by this Court in Swanson between the

class of workers entitled to seamen’s remedies and those

whose remedies fall under the LHWCA. There, in deny-

ing a traditional harbor worker status as a seaman this

Court stated :

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 navigable waters and to substitute for the

right of recovery [provided by the Jones Act] only

such rights to compensation as are given by the Long-

shoremen’s Act.

328 U.S. at 7.

Giving careful and correct analysis to the history of

the LHWCA and this Court’s jurisprudence, the court

below concluded the obvious. A traditional harbor worker

such as Petitioner whose occupation is expressly listed as

one within the coverage of the LHWCA may not claim

Jones Act status. ‘That conclusion is certainly one con-

sistent with (1) this Court’s opinion in Swanson, (2) the

original LHWCA, (3) the LHWCA as amended and ex-

panded in 1972, and (4) this Court’s express approval of

that expansion. See Northeast Marme Terminal v. Caputo,

432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977) ; Direc-

tor, OWCP v. Perini North River Assoc., 459 U.S. 297, 103

S.Ct. 634, 74 L.Ed.2d 465 (1983).

The decision below is also consistent with reality. In

this Court, Petitioner claims that he is not a longshore

worker but one who ‘‘from the outset [has] sought his

remedy’’ under the Jones Act. In fact, from the outset

Pizzitolo has been paid benefits as a longshore worker

under the LHWCA. Moreover, the present litigation was

not instituted until 19 months after Petitioner’s accident,

a period during which Petitioner was provided medical

eare and weekly payments all under the LHWCA. And

so far as Respondent knows, Petitioner continues to receive

those benefits now.

Finally, the decision below properly applies the well-

settled ‘‘mutually exclusive’’ principle. See e.y. Balfer v.

Mayronne Mud & Chemical Co., 762 F.2d 432 (5th Cir.

1985); Buras v. Commercial Testing & Engmeering Co.,

736 F.2d 307 (5th Cir. 1984); Thomas v. Peterson Marine

Service, Inc., 411 F.2d 592 (5th Cir. 1969). Accordingly,

it was proper for the court below to hold that there was

no reasonable evidentiary basis for the jury’s finding. In-

deed, the decision of the court below is nothing more than

a restatement of the well-settled line of demarcation be-

tween the seaman’s and the longshore worker’s remedies.

As one commentator has pointed out, the Fifth Cireuit has

a solid history of deciding seaman status issues. Rober!-

son, ‘‘Current Problems In Seaman’s Remedies: Seaman

9

Status, Relationship Between Jones Act and LHWCA,

and Unseaworthiness Actions By Workers Not Covered

by LHWCA’’, 45 La.Law Rev. 875, 877-892. And, the

Fifth Cireuit Court of Appeals has, in the challenged

decision, taken an approach which neither ignores any man-

date of this Court, nor misinterprets the intent of Con-

gress. Certiorari should be denied.

III. The Decision of the Court of Appeais is

Correct under the Robison Test

Among Petitioner’s arguments is one that the Court

of Appeals was incorrect in failing to use its traditional

analysis to determine whether there was a reasonable evi-

denitary basis for the finding that he was a seaman. How-

ever, even when applying such an analysis, the result

reached by the Court of Appeals is plainly correct.

In Offshore Company v. Robison, 266 F.2d 769 (Sth

Cir. 1959), the Fifth Cireuit Court of Appeals analyzed the

various decisions of this Court on the issue? and homogen-

ized them into its time-honored test for seaman status.

Under the Robison formula:

2s See, Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.

2d 754 (1958); Grimes v. Raymond Concrete Piling Co., 356

U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958); Gianfala v.

Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955);

Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct.

415, 1 L.Ed.2d 404 (1957); Desper v. Starved Rock Ferry Co.,

342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Norton v.

Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944);

South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60

S.Ct. 544, 84 L.Ed. 732 (1940).

10

[T]here is an evidentiary basis for a Jones Act case

to go to the jury: (1) if there is evidence that the in-

jured worker was assigned permanently to a vessel

...or performed a substantial part of his work on the

vessel; and (2) if the capacity in which he was em-

ployed are the duties he performed contributed to the

function of the vessel or to the accomplishment of its

mission, or to the operation or welfare of the vessel

in terms of its maintenance during its movement or

_ during anchorage for its future trips.

266 F.2d at 779. The two prongs of this test are conjunc-

tive; both must be met. In the instant case, Pizzitolo

failed to meet the first prong; therefore, there was no evi-

dentiary basis to support his claim of seaman status. And,

although the Court below did not use the Robison analysis

in reaching its results, its decision is, nonetheless, correct

and well supported by Robison and its progeny.

In order to fulfill the requirement of permanency or

substantiality, it was Pizzitolo’s burden of proving that

he performed a significant part of his work aboard a vessel

or vessels with at least some degree of regularity and con-

tinuity. Barrett v. Chevron U.S.A. Inc., 781 F.2d 1067,

1074 (5th Cir. 1986), (en bane). The necessary relation-

ship has been described as one ‘‘evincing a vessel rela-

tionship that is substantial in point and time and not mere-

ly spasmodie.’’ Jd. at 1074, quoting Bertrand v. Inter-

national Mooring & Marine, Inc., 700 F.2d 240, 247 (Sth

Cir. 1983). The injured worker must have ‘‘more than a

transitory connection’’ with a vessel or group of vessels.

Id. Furthermore, incidental and temporary duty aboard

a vessel is insufficient to fulfill the substantiality require-

ment. Billings v. Chevron U.S.A. Inc., 618 F.2d 1108, 1110

(5th Cir. 1980); Keener v. Transworld Drilling Co., 468

11

F.2d 729, 732 (5th Cir. 1972). Fortuitous and random as-

signments to work aboard vessels are insufficient to ren-

der a worker a seaman. Buras v. Commercial Testing &

Engineering Co., 736 F.2d 307, 310 (Sth Cir. 1984) ; Kirk

v. Land & Marine Applicators, 555 F.2d 481, 483 (5th Cir.

1977).

Moreover, where the worker’s duties aboard vessels

are only incidental to his primary land-based responsibili-

ties, or where such duties are irregular and fortuitous, the

worker is not a seaman. Wallace v. Oceaneering Interna-

tional, 727 F.2d 427, 434 (Sth Cir. 1984). Personnel who

are primarily shoreside or landbased workers and whose

tasks aboard a vessel are an incidental or casual part of

their overall tasks are not seamen. See, e.g., Bouvier v.

Krenz, 702 F.2d 89 (5th Cir. 1983); Billings v. Chevron

U.S.A. Inc., 618 F.2d 1108 (5th Cir. 1980); Guidry v. Con-

tinental Owl Co., 614 F.2d 447 (5th Cir. 1981); Fazio v.

Lykes Bros. S.S. Co., 567 F.2d 301 (5th Cir. 1978) ; Baztle

v. Bisso Marine, 606 F.2d 101 (5th Cir. 1979); Jones v.

Mississippi Grain Elevator Co., 703 F.2d 108 (5th Cir.

1983); Buras v. Commercial Testing & Engineering Co.,

736 F.2d 307 (Sth Cir. 1984); White v. Valley Line Co., 736

F.2d 304 (5th Cir. 1984). Moreover, those who come aboard

a vessel or vessels for isolated pieces of work are not sea-

men. Bertrand, 700 F.2d at 246; White, 736 F.2d at 306.

In the instant case, it is uncontested that the electri-

cians, including the Petitioner, went aboard a vessel to

perform a specific task, then upon completion of the task

received another assignment from the foreman of the elee-

trical crew. The task itself could take one hour or three

hours or one day or up to three days. However, when the

task was completed, Petitioner was assigned to other tasks

12

either on the shore or on the dock of Electro-Coal’s plant.

No more than 25 percent of Pizzitolo’s total time at work

was spent doing vessel repairs. Not insignificantly, Pizzi-

tolo’s accident occurred on the dock.

On the issue of substantiality, the percentages of time

which Pizzitolo spent working aboard vessels is a relevant

consideration. Munguia, 768 F.2d at 651; Barrett, 781

F.2d at 1076; Bouvier, 702 F.2d at 91; Abshire v. Seacoast

Products, Inc., 668 F.2d 832, 835 (5th Cir. 1982). In this

case, at least 75 percent of the plaintiff’s work was shore-

based and consisted of the repair of electrical equipment on

land. The Fifth Cireuit has yet to hold that any worker who

spent 25 percent or less of his time working aboard vessels

fulfills the substantiality requirement for seaman status.

For example, in Barrett, the Fifth Circuit held that an in-

jured welder’s helper was not a seaman. The plaintiff

was a member of a welding crew assigned to perform weld-

ing operations on a caisson located in an oilfield in the

Gulf of Mexico. During the course of his employment, he

_performed 70 to 80 percent of his work on platforms and

no more than 20 to 30 percent of his work on vessels. The

Fifth Cireuit, en banc, determined that the plaintiff did

not perform a substantial part of his work aboard a vessel

or fleet of vessels and, thus, was not a seaman.

Given this well-settled law, the holdings of the District

Court and the Court of Appeals were both predictable and

proper. There was simply no evidentiary basis for the

jury’s finding of seaman status. Instead, the Courts below

properly looked to the characteristics of Petitioner’s total

employment in terms of its nature and the location in which

it was carried out, Barrett, 781 F.2d at 1075, and properly

considered all of the circumstances of Petitioner’s em-

13

ployment to determine the relation of his vessel-related

activities to his total responsibilities, Longmire v. Sea

Drilling Corporation, 610 F.2d 1342, 1347 (5th Cir. 1980).

The circumstances in this case lead solely and directly to

the conclusion that Pizzitolo was a harbor worker/ship

repairman and not a seaman.

CONCLUSION

Respondent, Electro-Coal Transfer Corporation, re-

spectfully submits that the petition for writ of certiorari

filed by Nicholas R. Pizzitolo should be denied. Alterna-

tively, Respondent submits that summary affirmation of

the decision below is appropriate.

Respectfully submitted,

JoHn O. CHARRIER, JR.

JEANMARIE Lococo

JoNES, WALKER, WAECHTER,

PorrEvENT, CARRERE & DENEGRE

201 Si. Charles Avenue

50th Floor

New Orleans, LA 70170

Telephone: (504) 582-8000

Attorneys for Respondent

la

APPENDIX: LISTING OF PARENT, SUBSIDIARY

AND AFFILIATE COMPANIES OF ELECTRO-COAL

TRANSFER CORPORATION, PURSUANT TO

SUPREME COURT RULE 28.1

Electro-Coal Transfer Corporation

Teco Energy, Inc.

Teco Finance, Inc.

Teco Investments, Inc.

Tampa Electric Company

Teco Diversified, Ine.

Teco Properties Corporation

Teco Coal Corporation

Teco Transport & Trade Corporation

Teco Power Services Corporation

Termeo, Inc.

Catliff Coal Company

Rich Mountain Coal Company

Gulfcoast Transit Company

Mid-South Towing Company

Teco Towing Company

G C Service Company, Inc.