Opposition Brief — Coloma v. Director

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No. 89-1894 |

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ence

In The

DSuprene Court of the United States

OctToBer TERM, 1989

CEFERINO COLOMA,

Petitioner,

V.

DirRECTOR, OrFicE Or Workers’

COMPENSATION PROGRAMS AND

CHEVRON SHIPPING COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT CHEVRON

SHIPPING COMPANY IN OPPOSITION

THOMAS J. HARBINSON

Mark H. Tune

Counsel of Record

HARBINSON, CARLSON & TUNE

A Professional Corporation

Suite 618

114 Sansome Street

San Francisco, California 94104

(415) 986-3992

Attorneys for Respondent

Chevron Shipping Company

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-283

QUESTION PRESENTED

Whether a person employed as a cook and messman

serving crews of ships and other persons at a mess hall

on a wharf, but who had no involvement with the loading

and unloading of vessels, or the construction or repair of

vessels, was engaged in “maritime employment” within

the meaning of section 2(3) of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 902(3) (1982 ed.,

and Supp. V).

ii

RULE 29.1 LISTING

Respondent Chevron Shipping Company has a par-

ent company, Chevron Corporation. Respondent Chevron

Shipping Company has no subsidiaries.

ili

TABLE OF CONTENTS

OPINIONS BELOW.............-.00cceeeceeeeeeees

cass ese ss seesseveceessnes

STATEMENT OF THE CASE.......................

SUMMARY OF ARGUMENT..............-0000 000:

ere

A PERSON EMPLOYED AS A MESSMAN AND

COOK AT A MESS HALL LOCATED ON A

WHARF AND WHO HAS NO INVOLVEMENT

IN THE LOADING, UNLOADING, BUILDING

OR REPAIR OF VESSELS IS NOT COVERED

UNDER THE LONGSHORE AND HARBOR

WORKERS’ COMPENSATION ACT............

THE COURT OF APPEALS’ DECISION IN

ACCORDANCE WITH THIS COURT’S DECI-

SION IN HERB’S WELDING, IN WHICH THE

“REALISTICALLY SIGNIFICANT RELATION-

SHIP” TEST FOR DETERMINING MARITIME

EMPLOYMENT WAS REJECTED, DOES NOT

PROVIDE A REASON FOR REVIEW BY THIS

eI pet Ee aes en

iv

TABLE OF AUTHORITIES

Page

CAsEs:

Chesapeake And Ohio Ry. Co. v. Schwalb, 110

ie ie ¢. Se ae epee ree é, 5, 6, 7,9

Director, OWCP v. Perini North River Associates,

ee Se Me SE on nk wh cand aWene ae PAR Kann hans 7

Executive Jet Aviation v. City of Cleveland, 409

ee EE Si ee ciate ceo pennnchiabeerhvesceuns 7

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

SLIME RAMETERS s 455 5455 GUARD EMA EA ROR 4, 3, 4 7, 6, 9

Herb’s Welding v. Gray, 703 F.2d 176 (5th Cir.

MENG SERS Te eae ens als db veh hh Oar ene Ke ees uo 7, 8

Odom Const. Co. v. U. S. Dept. of Labor, 622 F.2d

110 (5th Cir. 1980), cert. denied, 450 U.S. 966

EE Ne Si Sek NASA GR SER SSAS ON ETA NC OR VOSU AD ES OS Oe oS 8

P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) ....... 6, 8

Sanders v. Alabama Dry Dock And Shipbuilding

Co., 641 F.2d 1065 (lith Cir. 1996)................. ,

Union Texas Petroleum v. PLT Engineering, 895

Peas BU Gee GR FR 5 sn ce vc ccccndevaveneesiess 8

Weyerhaeuser Company v. Gilmore, 528 F.2d 957

(9th Cir. 1975), cert. denied, 429 U.S. 868 (1976) ...6, 7

STATUTES:

Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. §§ 901-950 (1982 ed., and Supp.

WP ois 5 604500505 k 0d 45400486 epaneketasadewents 3, 4, 7

5 Sue So UK. GOR occ ccsecicnnwen a4 3 8 7,9

Outer Continental Shelf Lands Act, 67 Stat. 462, 43

U.S.C. §§ 1331-56 (1986 ed., and Supp. III)......... 8

No. 89-1894

In The

Supreme Court of the Hnited States

OctTosBer TERM, 1989

CEFERINO COLOMA,

Petitioner,

DrrREcCTOR, OFFICE Or WorKERS’

COMPENSATION PROGRAMS AND

CHEVRON SHIPPING COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT CHEVRON

SHIPPING COMPANY IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. A1l-

A14) is reported at 897 F.2d 394. The order of the Benefits

Review Board denying reconsideration (Pet. App. A15-

A17) is reported at 21 Ben.Rev.Bd.Serv. (MB) 318. The

initial decision and order of the Benefits Review Board

(Pet. App. A18-A23) is reported at 21 Ben.Rev.Bd.Serv.

(MB) 200. The order denying reconsideration by the

administrative law judge (Pet. App. A24) is not reported.

The administrative law judge’s decision and order deny-

ing benefits (Pet. App. A25-A30) is reported at 18

Ben.Rev.Bd.Serv. (MB) 434 (ALJ).

JURISDICTION

The judgment of the Court of Appeals was entered

on February 23, 1990. The petition for a writ of certiorari

was filed on April 25, 1990. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

1. Petitioner, Ceferino Coloma, was employed by

respondent, Chevron Shipping Company (Chevron Ship-

ping), as a messman and cook at a mess hall operated by

Chevron Shipping on a wharf. The primary function of

the mess hall, known as the “Seagull Inn”, was to provide

meals to the officers and seamen of visiting tankers while

their shipboard stewards took shore leave. Pet. App. A28.

The Seagull Inn also served crews of Chevron harbor tugs

and barges, and other visitors, including Coast Guard

officers, customs officials, harbor pilots and outside con-

tractors. Id. Coloma’s work at the Seagull Inn involved

cleaning tables, washing dishes and cooking. Pet. App.

A29. Coloma’s employment did not involve any aspect of

the process of loading, unloading, repairing or building

vessels. Pet. App. A30.

2. Respondent Chevron Shipping notes that peti-

tioner’s statement of facts (Pet. 5-6) includes factual

assertions that are not material herein or that are not

supported in the record, as follows: (1) Coloma’s employ-

ments by another employer, Chevron U.S.A. Inc., aboard

vessels before and after his employment by respondent

Chevron Shipping are not material to this case; (2) The

record does not establish that the operation of a mess hall

on the wharf for seamen to eat while off a vessel was

necessitated by a Coast Guard regulation requiring mem-

bers of the crew to remain aboard the vessel during cargo

handling. After the Seagull Inn was closed in 1982, the

crews ate aboard ship or at a cafeteria located about a

mile away. Pet. App. A13.

3. Coloma filed a claim under the Longshore and

Harbor Workers’ Compensation Act (LHWCA or Act), 33

U.S.C. §§ 901-950 (1982 ed., and Supp. V) for benefits on

account of an injury sustained in the course of his

employment during the years 1974 to 1982. Pet. App.

A25-A26. Chevron Shipping disputed the claim. Id. At a

formal hearing before Administrative Law Judge (ALJ)

Karst, the parties stipulated that the claimed injury,

benign keratoma and lichnoid dermatitis of both hands,

arose out of and in the course of Coloma’s employment

with Chevron Shipping and that the injury occurred on a

“maritime situs”. Id. The ALJ determined that Coloma

was not entitled to LHWCA benefits, finding that he was

not a “maritime employee” within the meaning of section

2(3) of the Act, 33 U.S.C. 902(3), because his occupation

“had no connection with loading or unloading of ships,

moving cargo between ships and land transportation, or

ships construction or repair.” Pet. App. A30. Coloma’s

motion for reconsideration was denied. Pet. App. A24.

4. Coloma appealed to the Benefits Review Board

pursuant to 33 U.S.C. § 921(b), arguing that his work had

a significant relationship to maritime transportation and

that the ALJ relied on dicta in this Court’s decision in

Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985). The Board

affirmed the ALJ’s decision and order and order denying

reconsideration. Pet. App. A18. The Board concluded that

Coloma was not engaged in maritime employment

because his work had no connection with t re loading and

unloading of ships and his work was not done in fur-

therance of traditional maritime activity. Pet. App. A22.

Coloma moved for reconsideration and the Board denied

the motion. Pet. App. A15.

5. Coloma appealed to the Court of Appeals pur-

suant to 33 U.S.C. § 921(c). The Court of Appeals affirmed

the decision of the Board. Pet. App. Al. The Court of

Appeals concluded that Coloma had not been engaged in

“maritime employment”, that the definition of maritime

employment applied in Herb’s Welding was not dicta and

that Coloma’s functions were not essential to the long-

shoring operations of Chevron Shipping. Pet. App. A1.

SUMMARY OF ARGUMENT

The Court of Appeals correctly applied the standard

articulated by this Court in Herb’s Welding, Inc. v. Gray,

470 U.S. 414 (1985) and Chesapeake And Ohio Ry. Co. v.

Schwalb, 110 S.Ct. 381 (1989). Petitioner’s employment did

not involve any aspect of the process of loading, unload-

ing, building or repairing vessels. Thus, it was correctly

determined that he was not “engaged in maritime

employment” within the meaning of section 2(3) of the

LHWCA, 33 U.S.C. § 902(3).

The “realistically significant relationship to tradi-

tional maritime employment” test, which petitioner

contends should have been applied to determine whether

he was engaged in maritime employment under section

2(3), was rejected by this Court in its decisions in Herb’s

Welding and Chesapeake And Ohio Ry. Co. The decision

below does not create any real conflict with the decision

of another court of appeals.

Accordingly, this case does not warrant further

review.

ARGUMENT

A PERSON EMPLOYED AS A MESSMAN AND COOK

AT A MESS HALL LOCATED ON A WHARF AND

WHO HAS NO INVOLVEMENT IN THE LOADING,

UNLOADING, BUILDING OR REPAIR OF VESSELS IS

NOT COVERED UNDER THE LONGSHORE AND

HARBOR WORKERS’ COMPENSATION ACT.

The Court of Appeals correctly concluded that peti-

tioner Coloma, a messman and cook, who was injured

while employed at a mess hall located on a wharf but

who had no involvement with the loading, unloading,

building or repair of vessels, was not covered by the

LHWCA. In order for the LHWCA to apply to Coloma, he

must be a “person engaged in maritime employment,

including any longshoreman or other person engaged in

longshoring operations, and any harborworker including

a ship repairman, shipbuilder, and shipbreaker, but such

term does not include __” (certain enumerated catego-

ries of employees). 33 U.S.C. § 902(3)(1982 ed., and Supp.

V). In Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 424 (1985),

this Court stated that “the ‘maritime employment’

requirement is ‘an occupational test that focuses on load-

ing and unloading.’ ” (quoting its decision in P. C. Pfeiffer

Co. v. Ford, 444 U.S. 69, 80 (1979)). “Its [Congress’] pur-

pose was to cover those workers on the situs who are

involved in the essential elements of loading and unload-

ing....” Id., at 423. “[L]and-based activity occurring

within the § 903 situs will be deemed maritime only if it

is an integral or essential part of loading or unloading a

vessel.” Chesapeake And Ohio Ry. Co. v. Schwalb, 110 S.Ct.

381, 384 (1989). Since it was found that Coloma’s duties of

cleaning tables, washing dishes and cooking did not

involve “any aspect of the process of loading, unloading,

repairing or building vessels” (Pet. App. A30), it was

correctly concluded that Coloma was not engaged in

maritime employment.

THE COURT OF APPEALS’ DECISION IN ACCOR-

DANCE WITH THIS COURT’S DECISION IN HERB’S

WELDING, IN WHICH THE “REALISTICALLY SIG-

NIFICANT RELATIONSHIP” TEST FOR DETERMIN-

ING MARITIME EMPLOYMENT WAS REJECTED,

DOES NOT PROVIDE A REASON FOR REVIEW BY

THIS COURT.

Petitioner argues (Pet. 7-14) that this Court should

consider whether the “realistically significant relation-

ship” test articulated in Weyerhaeuser Company v. Gilmore,

528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868

(1976) should be applied to determine whether a person

is engaged in maritime employment. In Weyerhaeuser, the

Court of Appeals for the Ninth Circuit held that the

occupational test under section 902(3) requires that the

employee’s job “have a realistically significant relation-

ship to ‘traditional maritime activity. ...’” Id., at 961

(citation omitted). This Court rejected that test in its

decisions in Herb’s Welding, Inc. v. Gray, 470 U.S. 414

(1985) and Chesapeake And Ohio Ry. Co. v. Schwalb, 110

S.Ct. 381 (1989). In Herb’s Welding, the Court of Appeals

for the Fifth Circuit had held that the employee’s work

bore “a realistically significant relationship to traditional

maritime activity involving navigation and commerce on

navigable waters.” Herb’s Welding v. Gray, 703 F.2d 176,

179-180 (5th Cir. 1983). This Court reversed, rejecting the

“Fifth Circuit’s expansive view of maritime employ-

ment.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 423

(1985). In Chesapeake And Ohio Ry. Co. v. Schwalb, 110 S.Ct.

381 (1989), this Court reversed the Supreme Court of

Virginia which had adopted the “realistically significant

relationship” test. “In the course of considerable litiga-

tion, including several cases in this Court, it has been

clearly decided that, aside from the specified occupations,

land-based activity occurring within the § 903 situs will

be deemed maritime only if it is an integral or essential

part of loading or unloading a vessel.” Id., at 384.

Petitioner’s reliance (Pet. 4, 8, 11, 12) on Executive Jet

Aviation v. City of Cleveland, 409 U.S. 249 (1972) in support

of the “realistically significant relationship” test

employed in Weyerhaeuser Company v. Gilmore, 528 F.2d

957 (9th Cir. 1975), cert. denied, 429 U.S. 868 (1976) is

inapposite. In Director, OWCP v. Perini North River Assoct-

ates, 459 U.S. 297, 320 n. 29 (1983), this Court noted that

Executive Jet, which involved the application of federal

admiralty tort jurisdiction to an airplane crash into navi-

gable waters, was not relevant to determination of

LHWCA coverage.

The decisions of the Courts of Appeals for the Elev-

enth and Fifth Circuits, to which petitioner refers (Pet.

8-9), are not in conflict with the decision below. In Sanders

v. Alabama Dry Dock And Shipbuilding Co., 841 F.2d 1085,

1088 (11th Cir. 1988), the Court of Appeals for the Elev-

enth Circuit relied on Odom Const. Co. v. U. S. Dept. of

Labor, 622 F.2d 110, 113 (5th Cir. 1980), a pre-Herb’s Weld-

ing decision, in applying the “realistically significant rela-

tionship” test. The Eleventh Circuit’s reliance on

pre-Herb’s Welding authority without reference to this

Court’s decision in Herb’s Welding does not represent a

clear conflict with the Ninth Circuit’s decision below. The

Fifth Circuit’s decision in Union Texas Petroleum v. PLT

Engineering, 895 F.2d 1043 (5th Cir. 1990), which involved

a choice of contract law question under the Outer Conti-

nental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. §§ 1331-56

(1986 ed., and Supp. III 1989), is not in conflict with the

decision below because petitioner’s reference is to dictum

and in its opinion, the Fifth Circuit acknowledged this

Court’s criticism of the Fifth Circuit’s “expansive view of

maritime employment.” Id., at 1049.

Petitioner contends (Pet. 12-14) that the standard

applied in Herb’s Welding limits maritime employment to

“four narrow categories”, and that it is in conflict with

this Court’s statement in P. C. Pfeiffer Co. v. Ford, 444 U.S.

69, 77-78 n. 7 (1979) indicating that the occupations

included within the meaning of “maritime employment”

are not limited to those mentioned in § 902(3). The deci-

sions are not in conflict. It was acknowledged in Herb’s

Welding and Chesapeake And Ohio Ry. Co. that the listed

occupations were not exclusive. Herb’s Welding, Inc. v.

nani

Gray, 470 U.S. 414, 423 n. 9 (1985), Chesapeake And Ohio Ry.

Co. v. Schwalb, 110 S.Ct. 381, 384 (1989).

In urging this Court to abandon its prior decisions

and adopt a view of “maritime employment” which

would include activity that is not an integral or essential

part of loading or unloading a vessel, petitioner disre-

gards this Court’s observation that “Congress did not

seek to cover all those who breathe salt air.” Herb’s Weld-

ing, Inc. v. Gray, 470 U.S. 414, 423 (1985).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THomMaAs J. HARBINSON

Mark H. Tune

Counsel of Record

HARBINSON, CARLSON & TUNE

A Professional Corporation

Suite 618

114 Sansome Street

San Francisco, CA 94104

JUNE 1990