Reply Brief for the Petitioners — Comley v. United States

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| LisiiaRY, ._ | ; |

SUPREME COURT, Us Se . FILED.

oh F. DAVIS, 5 CLERK

Peni Court of the Buited Staten

October = 1965"

No. 399

SARAH SMITH, as Administratrix of the Estate of

, JOHN C. SMITH, Deceased, and GEORGE THOMAS

HOLLEY,

Petitioners, .

i Vv.

UNITED STATES OF AMERICA and MARIN E TRANS-

PORT LINES INC., as Owners of the USNS POTOMAC, -

Respondents.

_ On Perrrion ror a Writ or CertioraRi To THE UNITED

States Court or APPEALS FOR THE Fourtrs Circuit .

“REPLY BRIEF FOR THE PETITIONERS

Marvin Scuwarrz,

233 Broadway,

New York, New York,

Carvin W. Brert,

500 Helena Building,

Norfolk, Virginia,

Attorneys for Petitioners.

Donatp E. Kier, -

C. ArtTuour Rotter, JR.,

ied Cownect.

,

Sot Ct Atheletes Rel ele ea

INDEX

| ‘ PAGE

Argument S Lek y ee ahah eee ee ate aaa ae cia

SD nas cu dceabs sack caanuneéssia¥eues cas 5

Table of Authorities

CasEs: — es

Blanchard v. United States, 347 F. 2d 268 (Ct. Cl.

Waianae HiavieG eae 3

Jansen v. United States, 344 F. 2d 363 (Ct. Cl.

ROE. eskaucie eree Dhaene oe

Johnson v. Emergency Fleet Corp., 280 U.S. 320 - |.

OM. cx cucvedsenieces PONE AActiee 9 2

: ‘ Maryland, for the use of Levin v. United . States,

Re Cs vedo cxceucsiuvucrice. 2, 3.

Statutes & Reouarions: | .

50. GO oii ick BES eo

* QAP RAMA etd Hing OE

80.0, F.B.11402 ............ eaientes “ates a Bae

me

-Suproms Court of ie Yuited States

October Term, 1965

_No.: 399

ray

Vv

. Saran SMITH, as Administratriz of the Estate of Joun e :

; Smiru, Deceased, and Grorce Tuomas Houtzy,

} Petitioners, —

v. . Paes

- UNITED. STATES or AMERICA and MarRINE TRANSPORT LINEs

Inc., as Owners of the USNS Poromac, :

Respondents.

On PeErrrion For A WRIT oF CERTIORARI TO THE UNITED

Srates Court OF APpP2ALS FOR THE Fourts Circurr

— ,

Vv

REPLY BRIEF FOR THE PETITIONERS

_ Argument :

Contrary to the assertion on page 7 of the saiapiidiaicha’

brief in opposition, the petitioners do: not contend that

Marine Transport Lines, Inc. was an ‘‘operating agent’’

_ or an agent of any other kind. In their brief the attorneys

for the United States of America characterized Marine |

Transport Lines as an ‘‘operating agent’’ no less than eight —

times. This characterization, which is solely that of, the

_ attorneys for the ‘United States, seems to have been in use

‘by the. Department of Justice since at least 1948, the year of

the earliest of the Congressional Reports cited on page 8 of

respondents’ brief. Notwithstanding the age of the phrase,

it does not in any way appear in the contract between

. by 3

oo,

¢ <a% 5 ee

Marine Transport Lines, Inc. and the government, from

which even the word ‘‘agent’’ is missing.

The question of agency was not presented to this Court

in Johnson v. Emergency Fleet Corp., 280 U. S. 320 (1930)...

‘Moreover, the language of 46 U. S. C. 745 which provides |

that the remedy against the United States is exclusive of

any other action against the agent or employee of the

' United States, was in fact a’ limitation upon the rule

announced in Johnson wherein the Court stated at 280 ,

U. S. 327, ‘‘We conclude that the remedies given by the

act are exclusive in all cases where a libel might be filed

under it.’’

| The brief for the respondents in opposition ‘in not

- deny that the provisions of the contract between the United

States of America and Marine Transport Lines were in-

. tended to promote, encourage and foster the American

Merchant Marine in accordance with the Armed Services

- Procurement Regulations 32 C. F. R. §§1.1401(e) and

1.1402. Neither does the government contend that the Gen-

eral Military Law relating to procurement did not give

the Secretary of Navy the authority to ‘‘make any kind ©

of contract that he considers will promote the best interest

of the United States’’. Title 10 U. S. C. § 2306. Conse-

quently the government cannot imply that the provisions

in the contract which recognize the right of the seamen to

sue Marine Transport Lines are invalid.

The relationship of Marine Transport Lines to the

national ‘defense effort is not closer than that of the

Civilian Caretakers of the National Guard for whose torts

this Court ruled the United States was not responsible

under the Federal Tort Claims Act. M aryland, for the use

of Levin v. United States, 381 U. S..41 (1965). Therein this

Court ruled that the United States of America was not

responsible for the actions of these Civilian Caretakers even .

though they were paid with federal funds, were required to

observe federal requirements in order to maintain their

positions, and were employed to maintain federal property,

381 U.S. at 48. In Levin, the court relied in part upon the

constant administrative practice of the Department . of

Defense to treat these civilian caretakers as state rather

than federal employees. The administrative practice of

the Department of the Navy and the United States of

America in connection with the MSTS procurement con-

tract prior to this litigation was to treat contractors such

as Marine Transport Lines as other than ‘‘agents’’ under -

the Suits in Admiralty Act. The uniformity of the practice

of the government and its contractors to allow civil suits to

proceed against the contractor under the Jones Act is

shown by the concluding statement in respondents’ argu-

ment on page. 10 of their brief wherein respondents recog-

nize that this is the first appellate case involving the appli-

cation of the exclusivity provision of the Suits in Admiralty

Act. The practical: interpretation ‘of a contract by. the

parties themselves during performance is, of course, of

great. importance in resolving disputes involving contract

interpretation. Jansen v. United States, 344 F. 2d 363 (Ct.

Cl. 1965) and Blanchard v. United States, 347 F. 2d 268

(Ct. Cl. 1965). :

- Respondents concede as they must that seamen em-

ployed on board the vessels operated under contract are:

prejudiced by a two year as opposed to a three year statute —

of limitations. Moreover, the government has not even

attempi7d to minimize the prejudice which will result -to

those seamen whose civil actions against Contractors have

been pending for more than two years from the date of

their injuries. |

The number of vessels currently operated privately

under the contract (30) is greater than the fleets of Grace

Lines (27), Isthmian Lines (24), States Marine Lines (25),

‘and Waterman Steamship Corp. (25) ; the number of ves-

sels compares favorably with the size of the fleets of the

oe

giants of American shipping, American Export-Isbrandt- * es

sen Lines (45), Lykes Brothers (49), <ananneeeus

Lines (50), and United States Lines (54). .

The ‘seamen who man these vessels are assigned by

private employers in their customary manner (Smith-

Holley Appendix Court of Appeals, 87, 91, 92). They

received no warning of any type that they were to be treated

differently on board the government owned vessels. The

_ contract specifically provided ‘‘The officers and members

of the crew shall be subject only to orders of the Master

or Contractor. All personnel of the Contractor employed

in the performance of work under this contract including

the Master, other officers and crew members shall be em-

ployees of the Contractor at all times and not of the Gov-

ernment (Smith-Holley Supplementary Appendix Court of

Appeals, 9).

More than fifty (50) pages of brief have ies filed in this

Court and the courts below by the attorneys for the United

States; the government has not yet explained why, if the

exclusive remedy of the seamen was to be against the

United States of America under the Suits in Admiralty and

Public Vessels Acts, the contract specifically provides that —

Marine Transport Lines was to be reimbursed for damages

for death and personal injuries occurring to its seamen

-employees (Smith-Holley Supplementary Appendix -_— ;

of Appeals, 35, 37). ,

qr

CONCLUSION >

Fér the reasons set forth aie and in the Petition

heretofore filed, the Petition for Certiorari should be

granted.

Respectfully submitted, -

‘Marvin Scuwakrz,

233 Broadway,

New York, New York, |

Canvin W. Brerr,

500 Helena Building,

‘Norfolk, Virginia,

Attorneys for Petitioners.

Donaxp E. Kuz1n,

C. ArrHur Rutter, Jz.,

Of Counsel.

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