# Petition for Writ of Certiorari — Union Barge Line Corp. v. Allen (No. 7633) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0107%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 ## Text RE Veg Le [mae oe af ea LIBRARY: | A oe SUPREME C@URT, U, Ey ees ie. NOV. 9 1066 Mat “IN THE : ft Ee Oe "Sopreme Court of the ay States we OCTOBER TERM, 1966 0. 16 8 - : UNION BARGE LINE CORPORATION, 3 = DRAVO.CORPORATION and __ we AETNA CASUALTY AND SURETY COMPANY, 7 Petitioners, e : > &» . WALTER ‘MPALLEN Ri. | Pas 2 a Respondent. | PETITION FOR A WRIT: OF ches JORARI TO THE. : UNITED STATES COURT’ OF APPEALS 3 FOR _— FIF TH CIRCUIT. “GEORGE B. MATTHEWS of LEMLE & KELLEHER,' .- . 1836 National Bank of © ° Commerce Building, . . ra New’ Orleans, Louisiana, . 3 e - . _ Attorneys for Union Barge _ oo oe SU ere ee ae Aetna Casualty and Surety | eae — Company.- *. .. W. FORD REESE, ‘GEORGE V. BAUS. of — ADAMS: AND REESE, . 846 National Bank of. bic rede sie | Commerce Building, . wes ¥ "+... New Osleans, Louisiand, 3 _ + Attorneys for Dravo Corportix - tion and Aetna Casualty — = Surety Company. F . f : . . oe: ; 3 . _HAUSER-AMERICAN, “LEGAL PRINTERS", 441 GRAVIER San tae cabeecx Rett ose. es a2 = + ’ Wy Pama ad ERNE Wiig aed f we . 3. . ; Not ws er : ” 3 8 INDEX ee Fs 4 res ODS = a ee a pean ery : es” 4 i * . * # . we Petition for. Writ of Certiorari ae - Opinions Below . . Jurisdiction Question. Presented _ Statement of the Cape - "Reasons for Granting the Writ é ‘Argument : 268 Conclusion ‘Certification af Service o Appendix “A” —Opi Appendix “BY _Opinion of the Court-of - inion of District fant be | a eS. BR Ria aR wy we ‘Appeals for the Fifth Circuit __ -Appedix “C”—Judgment of the Court of | Appeals for the Fifth Circuit - Appendix “D”—Aetion of the Court of * Appeals for the Fifth et on. er for ee hafta a ripe oa etek uate e . ii . 3 7 . < - : a : Ome a E > . <¥- . , ie ° - ia : f ’ a . < . i : S e . . B : oe : ieee 2 teh nne eae, Ve PAGE Berryhill Pacific Far East Line; 238 F.2d: $85 | (9th Cir. 1956), cert. denied US. 938, 7 8. Ct. 1400, 1 L. Ed, 24 1587-(1957) 7,11 facut, ou Company, 276. F. : oe Cir. 1960) since 5, 9,11 Rady vs. United States, 252 F. 2d 117 (4th Cir. 1958), cert. denied 356 U.S. 978, 788. Ct. 1186,2L.Ed - 2d 1147 (1958) —: 6,11 3 ‘Roper vs. United States, 868.U.S. 20, 82 S. ot. 5, TL, Ed 241 (1961) _ 6, 11 ° United N. ¥.&N. J. Sandy eek Piste ‘dees.te tle lecki, 358 U.S. 618, 798. Ct. 517, iichresidce" . (1959) +... 7,11 West vs. United States, 361 US: 118, 80S. Ct. 189,4 L. Ed. 24 161 (1959) 7 | 5, 8,11 a a eee Statutes — i eek often HS 28, S.C. § 1254 (1)__ eh Oy ae ra BOE a5 GN _ Supreme Court of the United States eee OCTOBER TERM, 1906 ies ’ o UNION BARGE. LINE CORPORATION, - DRAVO CORPORATION and |” -AETNA vrs: AND Rest ‘COMPANY, - Paine, z WALTER M. ALLEN, - PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS | : FOR. af HE ghia ae ‘sap 4 7 Come now Union Barge Line eG Dravo Cor- : poration and Aetna Casualty: and Surety. Company, peti- tioners, and respectfully pray that this Honorable Court issue a writ of certiorari to review the judgment of the . United’ States Court of“Appeals for the Fifth Circuit: en- tered herein on the 24th day of | ‘May, 1966, affirming a judgment of the United States District Court for the East- = _ ern District of Louisiana | in-favor of respondent, Walter ' - -M. Allen, | and the order of the same Court denying re-. — entered on the apt aay. of — 1966. : Beek 2 o tren See prepee BELOW — The opinion of.the District Court below is neti at 239 F. Supp. 1004 and\the opinion of the Court of Appeals for the Fifth Circuit i is reported’ at 360 F. 2d 217. Both’ opinions are reproduced i in the Appendix hereto. The order -' denying sweniny A is Preven oxiaes, and i is eae in the : ee. pas a roe SS seine og, Pinta "JURISDICTION - ; The judgment of the Court of Appeals for the Fifth Circuit was entered on May 24, 1966. A petition for re-. ~ _ hearing was timely filed and thereafter the ‘said Court - entered its order denying rehearing without opinion on — -- . August 29,1966.’ The mandate has been maria ce td the filing of this sppiiestion. 3 The jurisdiction of this Court is. invoked ‘ider 28 ae : ‘USC. § 1254 (1). _ QUESTION PRESENTED 2 . "Whether or not a land based shipyard worker injared while performing repair work,on.a vessel in drydock diir- 4 ing ‘an annual overhaul which entailed the surrender of — control of the vessel to the shipyard, extensive use of cranes _ ; : and other specialized shipyard equipment not available on _ i +. the vessel, and the removal, machining and .reinstallation . of the propellers and propeller shafts, was engaged in work traditionally performed by a crewmember on a vessel in iS navigation so as to entitle the injured worker to = the doctrine of Satie Nar rae oe “STATEMENT OF THE CASE +. This admiralty action against the M/V MARINER, . 7 Union Barge. Line Corporation, its owner, and Aetna Cas- _ , waty and Surety Company, Uni nion’s etEeN, was brought Oe Ae a ieee s- the District Court of the United States for. thie Bastern’ " District of Louisiana by a land based: shipyard worker in the employ of Dravo Corporation, who was injured while “working aboard the ‘Fowboat *MARINER, of 1,108 tons, .owned by Ynion Barge Line Corporation, which. was then . in drydock'at the Dravo Shipyard in Baton Rouge, Louisi-: . ana. Union claimed over ‘against Dravo“Corporation and Aetna Casualty and Surety Company, which also insured — RE f od The evtddnns shows that the MARENER-went into the _ . Dravo yard i in Baton Rouge for extensive repairs. One of the items of repair i ‘the removal of the propellers: ) and propeller shafts, which were to be taken to the machine _ __ shop by a Gantry crane, there - ‘machined and then rein- . stalled. One. portion of the propeller. shaft to. be removed af ae was approximately thirty-five feet in length, and thirteen | o / inches in diameter and weighed approximately 15,750° pas pounds.. Heavy chain draws were: utilized to remove the . ‘propellers and the shafts, and highly specialized equip- ment was used in connection with the machine work. After the shop work. was completed, the process was reversed . and the propellers and shafts reinstalled i in the vessel. | - While working on the cotipling involved in reinstalling one ofthe shafts, a sie was erected from which Allen fell. The Court found in. effect that the scaffold was de- ‘fectively fabricated by Dravo thus causing the MARINER | . to be unseaworthy. For the purposes of this application, it may be assumed that these cog ab are tally stipported by the record. : , At no dame during the’ course. of the wus hetorsien: ‘by Dravo on the MARINER was any crew member of the _., vessel required or pernfitted to perform any duties in.con- . nection with the sepette being — by Dravo. + 4 The entire reach of the area in which the scaffold: was erected was and had been in the exclusive control and cus- tody of Dyavo since the commencement of the sae work. ~The work in sii was highly siinialiagd ani _ Dravo sent one of its Mechanical Supérvisors from its main \. yard in Pittsburgh ‘to supervise the work on the MARI- NER. Both this witness, Mr. Phillips, and the Chief Engi- neer of the MARINER testified that the work being per- formed was nit of the type that could. be performed by the crew of a vessel. This evidence is uncontradicted. Wiegh \ Ae ae whe : Not, only is this clear from the record, but apparently ~ e District Judge was in agreement that the work in.ques- tion could not have been done by the*ship’ 's crew. ‘In a col- yarn loquy between‘counsel for Union Barge Line and the Court: regarding the relevancy of this evidence, counsel remarked, “My purpose is, Your’ Honor, to show that this is work _ that could not be done by the vessel’s crew and that it neces- - Sitated«a shipyard and shipyard employees and shipyard, equipment.” ‘The Court replied, “I don’t-think Sere J is any "question about That.” (Tr. 395). : ae ict: b ‘HeeGeer in ‘the face of this ‘tact situation’- J udge E. Gordon West held “that. libellant “was performing work traditionally performed by. a seaman, and that he was, at the time of-his injury, entitled to the warranty of sea- worthiness,” He further. concluded that Allen was entitled _ to recover damages from Union. Barge Line, as, owner of ‘the MARINER, because of a breach-of the warranty of seaworthiness ; and Union Barge Line was in turn allowed: oy recovery over. against" Dravo for the amount of the decree, plus penile costs an@ reasonable attorney’ S fees. The case .was orally atiacd before the United States a Court of Appeals for the Fifth Circuit on April. 20, 1966. * oe e . Ve. sep Ne _ = ‘ After an interval of a month, the Court published ae one ‘ . gentence per curiam affirmance, without any assigned rea- _ - sons despite fhe blunt dissanting opinion of Circhit Judge ~ ‘ Jones. Thereafter, ‘a. petition for rehearing was: timely filed and subsequently the Court of Appeals entered its _ order denying the rehearing without opinion. Both Union. Barge Line and Dravo Rave saeacehe in this- application for 3 ee certiorari. ‘ 3 ro REASONS FOR GRANTING THE. WRIT It is respectfully submitted that’ the writ sought by petitioners should be granted for the reason that ‘the de- cision of the Court of Appeals for the Fifth Circuit in its - per curiam affirmance of the trial judge's decision, ‘has, ' in the words of Rule 19 of the Supreme Court Rules, sofar . sanctioned such. a departure from the usual course of judi- -- ‘ cial proceedings by a lower court as to call for an exercise of the Supreme Court’s power of supervision. The depar- ture ‘was the Trial Judge’s statement that the extensive ‘repairs’ being performed ‘on the MARINER constituted normal routine maintenance, phrasing the statement as a . ‘Finding of Fact, ‘when ‘in truth. such a Finding. masked the real legal issue in the case: whether the rule of Lawlor v. Socony-Vacuum Oil ‘Company, 275 F. 2d 599 (2d Cir. 1960) was to be extended to cover major, repair situations. ® Furthermore, Rule 19 sets out dnnther reason for _ granting certiorari in this ¢ase. The decision below decided — ‘a federal question, a questifM of the admiralty jurisdiction, in such.a way as to bring the result in conflict with the ruling decision of this Court, namely West v. United Sfates, 361.U.S: 118, 80 S. Ct. 189, 4 L. Ed. 2d 161, (1959) and its holding that the warranty of seaworthiness is not due when - the undertaking involves major repairs entailing extensive miaiidtal ccicie Gh Kes: : Furthermore, ‘this is an ineuie “where a Court of Appeals has rendered a decision in conflict with the decision ° of another Court of Appeals on the same matter”, since the Fifth Circuit, in adopting the Trial. Judge’s opinion as its own, necessarily endorsed the precedent breaking decision that a vessel out of water i in drydock was “in navigation”. : : ARGUMENT *The doctrine of seaworthiness has no application at all, and occasion for the application ‘of the “ship’s service” or any other test cannot even arise, if the ship is in fact | out of navigation. As this Court stated in Roper v. United States, 368 U.S. 20, 24 n. 3, 82 S. om 5, 7n. 3, 7 L. Ed. 2d. 1 (1961), a iS “The view that a vessel not in navigation ettieds no warranty has often ‘been expressed in the more _ familiar context of to whom does the warranty ex- tend. E.g., Union Carbide Corp.:v. Goett, 4, Cir., 1958, 256 F. 2d 449. ‘Implicit within such cases is ’ the reasoning that those working on ‘vessels not in navigation are not seamen (or doing seamen’s work) ~ and consequently not among those employees pro- tected a the warranty of seaworthiness. ys 7 ‘ This i is a restatement of the egal denn which has led courts in various circuits to’ rejeet the applicability of . the warranty of seaworthiness doctrine’ when a ship has been hoisted high out ‘of the oe of. foto into . _ drydock. ‘ p dn Raidy | v. United. States, 252 F. 2d 117 (4th Cir. 1958) cert, denied 356, U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958) the Court dismissed tie libel of a shipyard -wersker who was injured when he slipped and ‘fell: ‘on a 'ves- which lay in drydock.. The Court. held that Raidy’s . states was different from that - a seaman, since, : &S e 7 * “The dhip - ‘was in Neee: for structural ‘ieee _ which could not have been performed’ by the crew. In fact the crew had been discharged long before — ; the accident occurred. The ship at the-time was not subjected to any perils of navigation. In fact it had necessarily been withdrawn from. navigation for a long period.” 7 : In. Berryhill v. Pacific. Far East ‘Line; 238 F. 2d 385 (9th Cir. 1956), cert. denied 354 U.S. 938, 77 S..Ct. 1400, — 1 L. Ed. 2d 1587 (1957) the Court denied recovery toa - shoreside machinist who was. injured while working on a "drydocked ship, stating that, “The Courts have recognized the distinction between the protection. required by a seaman, and one who - works on a ship cradled on dry land. The very rea- son for the rule of absolute er ends when the - vessel is not on water.” . - , Itis true that the Trial J age seek his, conclusion that the MARINER was not in navigation as a finding of fact. But a “finding of fact” is a-coat of many colors. It. "does not cover a conclusion drawn from uncontroverted happenings. The salient fact in this case is uncontroverted: Allen was injured:while the vessel was still in drydock, | where it lay out of the water, with its very means of loco- motion ripped out. This was not a Vessel i in navigation, and no warranty of seaworthiness is owed to anyone unless the | vessel is in navigation. A “finding of: fact” that a war- ranty of seaworthiness was due to Allen is in reality a con- : clusion of law, and an erroneous one at ane Q ‘The facts Reba on the ‘record in this case are strikingly similar to: the facts presented to this Court in United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 618, 79 S. Ct. 517, 3 L. Ed. 2d 541 (1959) where, the Court stated, 8 ’ oF “The work that he did w vag inno way the type of '. work traditionally done by\the ship’s crew. It was work that could not.even be performed upon a ship - ready for sea, but only when the ship was dead with ‘its generators dismantled. Moreover, it was the | work of a specialist, requiring special skill and spe- — cial equipment — portable blowers, air hoses, gas | masks, and tanks of carbon tetrachloride, all brought’ aboard the vessel for this special purpose, and ‘néne connected. with the ship’s seagoing oper- _ ations. Indeed, the work was so specialized that the repair yard engaged to overhaul the vessel was not — _ itself equipped to perform it, but Had to enlist the services of a subcontractor.” The removal.and vebastultton of propeller shafts is not the type of work that can be performed on a ship ready . for sea. Ht is the sort of ‘job that can only be done when _the’ship is dead, out of navigation, and is high.and dry in - dock. Moreover, it is the cat of job that requires the at- } tention of a specialist, with special skills and equipment, in ¢ this ease Gantry cranes and special cutting equipment — | "all of which were connectéd with the special repair job in ___ question, and not with getting under -way oF navigating. | Indeed, the work was 80 specialized that the repair yard en- gaged to overhaul the vessel called in the gc special _ Supervisor from Pennsylvania. _ -Another aspect of the legal prensa to in aie: in determining whether a warranty of seaworthiness is owed hinges on the extent of the repairs and the exclusivenebs 2 - of the control of the vessel: In West v. ce States, supra, ‘ this Court rejgcted West’s claim, stating, « x ee “The Mary Austin, as anyone could sec, was not in maritime service. She was undergoing major . re- pairs and complete renovation, as the petitioner knew. Furthermore he. took his‘orders from the i — not-the~ — He knew who was en eenened orl neg ata ye TT RNG DELANO te Loner wy r oom - performed : under the contract at sustained did not call for anything in the nature of a major eee ; | ‘in control. “This undertaking was. not ship’s work but a complete overhaul of such nature, magnitude, -and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for thé sole purpose of making her seaworthy. It would be an unfair contradiction to say that me - owner held the vessel out as seaworthy in su ase. It would appear that the focus would be dpon a the status of the ship, the pattern of the repairs, + and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment. of injury. The job analysis which the latter would call for would lead © - “to fortuitous results. iF This test of the extent of repairs was made more ex- ' plicit in Lawlor v. Socony-Vacuum Oil Company, supra, in which the Court pf Appeals for the Second Circuit allowed recovery to a repairman working aboard ship on the basis of the applicability of the warranty, There,-the-tank ves- _ sel Mobilfuel had been-put-in dry dock for customary re- pairs, including painting of the: propeller and bottom. After this work was finished, the vessel was. taken out of drydock, manned by her crew, and moored alongside a pier for further work involving miscellaneous small items. It - was during this phase of ‘the overall repairs that thé acci- | dent occurred. The Court emphasized that no structural changes were to be made, that the crew of the vessel owner - had put the ship back in ee that the- work being or substantial item ‘of change or repair, and, most impor- tant, that the vessel was equipped to pafinit, her crew to do the same work while at sea. How different are the facts in this case! The MARI- NER was not in navigation. Allen was injured while work- he time the injury was © ie F a € of 10 ve ” ing. on a “seaffold which was to aid in “reinstalling a. pro- -peller shaft so heavy that it had to be lifted by a Gantry crane following its removal to the machine shop, the use of special equipment, and all under the supervision of one of Dravo’s, Mechanical Supervisors from the main yard in Pittsburgh. This was not work traditionally performed by a seaman. It cgld-not be. No equipment exists aboard any vessel which enables that vessel’s crew to remove the = and “— see Canis ek eer - - _ Iti is true that elem f the galley crew and an en- gine room were aboard, but not one of these men - \was } part of the deck crew which controls the navigation: of the vessel. In fact, these crew members had been in-_ - structed not to interfere with or participate in any way __ ‘f with’ the repair work being performed by the shipyard. There is no question but that the vessel owner did not have -control of the vessel,.so there ‘existéd the very opposite of the situation in Lawlor to which the Trial.Judge compared “ this case, because there the vessel coritained-a full comple- ment of officers and men who.remained aboard performing . ~seamen’s duties while the auxiliary repairs were finished. This is not a case where-a shipyard worker on board a ves- sel is injured as a result of a vessel hazard as opposed to a shipyard hazard, Allen has a remedy against ‘his em- _ ployer, Drav, and should be remitted to this remedy. - It is. submitted that the facts presented | on the record — in this case fall ‘squarely within the guidelines of the well, he established line of cases which have held that there is no warranty of seaworthiness in major repair situations. — - Allen’s injury did not occur because of some latent defect in the vessel. The yessel was put in the shipyard to be re- paired, and the:scaffolding ‘upon which Allen was injured was constructed by:the shipyard for the purpose of carry- — ee i.e Ae ing out eit: repairs. As this Court stated in West v. Umited States, supra, “It appears ‘manifestly unfair to apply the require- : ment of a safe place to work to the’ shipowner when - he has no:control over the ship or the repairs, and the work. of repair in effect creates the danger; . which makes the place’ ‘unsafe. The respondent, — . having hired Atlantic to perform the overhaul and > - reconditioning of the vessel — including the testing - -——-was under no duty to protect. petitioner from | risks that were:inherent in the carrying out of the contract. The Courts of Appeals seem to have fol- . °. lowed this rule. See Filipek v. Moore-McCormack Lines, 2°Cir,, 258 F. 2d 734. Although some of re- -. spondent’s Aployees were on board the ship here, _ this would not attach liability since they gave no orders, and did not. participate i in the work or super-. vise its progress, but were simply inspectors or. ob- servers. Id., at page 137.” ; The facts presented on the record ip ‘this case bring the vessel owner within the above stated rationale. Petitioners contend that on the facts of the-record, the | findings of the Trial Judge are contrary to the guidelines | established by previous Supreme Court cases. The decision and findings in this case go against the “major repairs and - control” test set out in‘West and Lawlor and against the ss “out of navigation” test of Halecki, Roper, Raidy, and . _ Berryhill. Petitioners contend that the Trial Judge applied the standards ‘set forth’ in West and Lawlor incorrectly when he held that a vessel raised out of the water in dry- dock was still in navigation, and that this.holding brought —_ the decisions of the Fifth Circuit: in conflict with the de- _ cisions of the Second Circuit. Petitioners contend-that the Trial Judge’s decision in this case is in conflict with the applicable Admiralty decisions of this Court, and that the . affirmance by the Court of Appeals sanctioned such a de- 12 parture par, the usual course of gronsdinds’ as to call for an exerciseyof this Court’s power of supervision. Ree | CONCLUSION Eeccet | For the foregoing reasons, a writ of certiorari should issue herein to the end that the judgment of the is of Apomly for the Fi Fifth Cireuit, Should be reversed. ; n eaeetaly submitted, .- * * “© GEORGE B. MATTHEWS. of 2 ater. ; LEMLE & KELLEHER, | , eet cs ire .1836 National Bank of ing . 4 gor _ Commerce Building, . ' = ‘ New Orleans, Louisiana. f . W. FORD REESE, GEORGE V. nah of ADAMS AND REESE, : 846 National Bank of - . : .. Commerce Building, New Orleans, ipolatgns. CERTIFICATION OF SERVICE . i : I hereby certify that a copy of the foregoing has been © - duly setved on opposing counsel by depositing the same in - the United States mail, postage aay, addressed to them ae | at their ‘office. , \ _ New Orleans, Louisiana, oe i = 1006. \ . \ GEORGE B. MATTHEWS — ae «43 “APPENDIX “A” OPINION OF ‘DISTRICT COURT | _ (Title and Number Omitted) (Filed: March 30, 1965) — ° a WEST, Distriet Judge: while. libelant was working aboard the M/V MARINER, » a towboat owned and operated by respondent, Union Barge | Line Corporation, he’ was injured when a scaffold upon’. - which he .was working collapsed, He. brings this libel | - against the Union Barge Line Corporation, as the-owner' . . of the M/V MARINER, and also against the M/V MARI: Libelant, Walter M. Allen, was } ible by Dravo Corporation i in a capacity which he described as a “handy man,” but which actually appears to be that of a ship- . fitter. Dravo is a corporation engaged in the business of _ performing maintenance work, repair work, dry-docking, ete. of seagoing and other vessels. Ori March 23, 1963, NER in rem, alleging that his i injuries were caused by the negligence of Union and by the unseaworthiness of the . vessel, M/V MARINER. He also. libels Aetna Casualty °° and Surety Company as the liability insurer of Union, and as the liability insurer of the directors, supervisors, stock- holders, agents, employees, and. representatives of Dravo ’ Corporation, whom he contends: were individually guilty - of negligence proximately causing his injuries. Union . answered admitting ownership of the MARINER; deny- . ing negligence; _denying that the MARINER was in any _ way unseaworthy ; and alleging that the accident was caused entirely by the fault and negligence of ‘libelant. - Aetna answered admitting its insurance coverage of both Union and Dravo; denying negligence on the part of Union; denying that’ the MARINER was unseaworthy; and alee z es ing that the libelant had sesumed the risk: " his employ- Ph ; * é ‘es : € . is em * , : P » . % ‘ ° , » . a *~ .. , ou Ry at eis ment and that the: afcident, was caused is his own aia -- .- genée. As insurer of Dravo, Aetna’ also contends that ‘libelant’s exclusive remedy lies-under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, . and that there was no independent negligence on the part ’. of the directors, supervisors, stockholders, agents,,employ-_ -' ees, and representatives of Dravo causing or contributing . to oe cause, arts libelant’s i injury. ; a ¥ ‘Union,-and its insurer; Neti: also filed a . petition under the 56th Admiralty Rule against Dravo, seeking © : indemnity for any sums that they, or ‘either of them, might be ordered to pay libelant as a result of this accident on the ground that if the MARINER was -unseaworthy she . was unseaworthy only because Dravo failed to perform its ‘ * eontract of repair in a workmanlike manner. Dravo an- ‘. swered the 56th Rule petition denying all allegations of © negligence and alleging that it performed its wark on the - MARINER in @ workmanlike manner. “Aetna then, as ~ _ Dravo’s compensation ‘insurer, ‘filed an intervening libel, seeking reimbursement from libelant, Union and: the ‘MARINER, for all money paid to” libelant undér the: ‘Eong- ei shoremen’s and Harbor Workers’ Compensation Act in the event libelant “is granted ‘recovery in. this suit. In_ this posture, and after pretrial conference, the: case came. on - for trial on November 2, 1964, following“ which briefs were : filed by. counsel for all parties. ‘Now; after carefully con- ae sidering the-record herein, the evidence adduced at trial, and the arguments and briefs of counsel, the Court makes - the following nating of fact. and: conclusions, of law. > & FINDINGS OF FACT - “4. On March 16, 1963, the. ‘M/V MARINER, a tow- bost owned and. operated by respondent, Union Barge Line — -Corporation, arrived at the repair facilities of Dravo Cor- . ce. Foe pe ee re 3 “nile on the Mississippi River at Baton Rouge, Louisi-* ' ana, to receive its routine annual maintenance servicing - | which Dravo had contracted’to perform. Included among / oe starboard ‘stern; installing a closed ‘jacket. water cooling _ system; and removing pro Her shafts: and installing new sleeves thereon. the items of maintenance ‘and repair: to be performed by. ‘° _ Dravo were such things as cleaning “gate valves; fabricat- | ing a steel grating walkway at the after.end of the pilot-' Ps. house; fabricating and installing pipe storage rack in the shaft ‘alley; installing grab rails in showers; installing. new towing kevels; washing dédwn engine room; removing ~ accumulated sludge; installing rubbing -bars on port and 2. Dravo. contracted to ‘perform ‘ail work called for a by its contract with Union in “a good and workmanlike ' manner.” 3. The M/V / MARINER pitied 8 at th’ reek: repair ’ facility on March 16, 1968, ang was placed in a floating ° - _ drydock on March 18, 1963. ‘She was returned to the water ‘on March 25, 1963, and left thé.repair yard, with all re-" pairs and maintenance commpleted on April 4, 1963.! - he Libelant boarded the M/v ‘MARINER on March < - 28, 1968, as an employee of Dravo. He was to assist in the © - yemoval of the upeente shafts by removing the Le a therefrom. ae it was necessary to sie song the hull brates on Vn, | 5 The M/V wAkDTER, is a. 192 foot lone diesel.” powered push ‘boat. She has twin screws with her’ two: shafts separated by a centerline bulkhead. This bulkhead | has. an opening at each end to provide access -from one — ee ! shaft alley to the other. There’ was, at'the time of the.acci- , dent, no walkway. along the shafts. To. ‘inspect the shafts Sat Ss am) % ¢ o mee , re * Q r ee ae ee . four or five feet huew Be level of the “shafts. Each shaft ‘s « had three carrier bearings in the Shaft alley and one bear- ing at the bulkhead separating the engine room from the shaft alley. The shafts are approximately 13 inches in | ~ diameter, and each half of the couplings or bearings weigh . approximately 350 pounds. to ° o° 6. While either: removing or replacing a ‘coupling “from the shaft, libelant was working on a scaffold, which - yoom crew and‘the galley crew did remain aboard and did had been erected’ to facilitate working on the shaft, when it collapsed causing | him to fall four or five feet:to the bot- ; tom of the hull where he landed astraddle of an ge! iron " rae, causing him severe injury. 7. The scaffolding. was. hivnichad and erected om the 4 | , Shaft alley by Dravo prior to its use by libelant. | 8. The*seaffolding was defective in that one “of the 2x 4’s use@’to support the plywood platform had a large _knot in it and it was because of tiiis defective 2 x 4 that the . scaffold ‘euilapsed — libelant’s i injury.. Lk The defect in the lumber would not have been noticea wen by reasonable inspection, and libelant was not guil _ caused or contributed to the catise of say accident. 10. The work being done on the M/V MARINER at " the time of this accident was nothing but usual, routine — - majntenance work such as is performed on the vessel every year or two. The performance of this. work - not take the Vessel out of navigagion.. -@., ~ at 11. ‘While it is true that the entire crew did not re- - main aboard during the repair period, the entire: engine "perform their regular duties during the entire time. | -@ f any negligence whatsoever whith in any way. , asus « 12. The defective scaffolding from which the libelant vats - fell and injured himself created an unseaworthy condition ~ aboard the M/V MARINER, which unseaworthy condition .was caused entitely by the negligence of Dravo Corpora- tion resulting in their failure to perform their work under ’ their contract with Union in a workmanlike manner. 13. Respondent, Union Barge Line Corporation, was . not guilty of any negligence causing or contributing ‘ to the ~ cause of this accident. 14, Libelant was 40: years old at thegtiin of his in- jury. He had a congenital defect in his spine at the fifth. | lumbar interspace, which defect, in all probability, made him more mare | to injury than he would ware | have been. 15. About 14 years prior to this accident, in 1950, while working for. an oil well drilling company, libelant . injured his back and was more or less incapacitated for _— - about 17 weeks. But the injury sufferéd by him at that _ time’was to the upper back, in the cervical region. He has * never before had. any trouble with his lower back. 16. Libelant’s prior work ‘record was not consistent with prior lower back trouble. He has, over the past years, _worked regularly as a.pipefitter, mechanic, welder, oper- ator of heavy equipment, truck driver, etc.. While at the time of his accident he was described as doing the work of . a shipfitter, he himself described his work as that of a “handy man,”. consisting of mechanical work, electrical _ work, crane operator, or “anything else assigned to. him. ” 17. As a direct and proximate vonelt of this secident, | libelant suffered what is, in all probability, according to the overwhelming weight of the medical testimony, a _ herniation of. the fourth lumbar, dise with a compression — ? aa ae 18 " of the fifth lumbar nerve. He is, and has been since the occurrence of this accident, unable to do any heavy manual work, and is unable to do the type of work which he axed . done for a living for the past 14 years. ee 18, During libelant’s’ cnpliynent ‘with Dravo, his average income from his employment was something over $5,000 per year. He was earning $2.70 :per-hour at the time of his i injury. Since this accident he has been unem- ployed, his only income being $1,850 paid by Aetna Cas-- : ualty and Surety Company, as. insurer of Dravo Corpora- tion, under the Longshoremen’s and Harbor Workers’ -Com- pensation Act. His medical expenses to date, in the total sum of $482.46, have also ‘been paid by Aetna, as insurer of Dravo, and pursuant to the provisions of the. Long- shoremen’s and. Harbor Workers’ Compensation Act. 19. Libelant has refused, ahd still refuses to under- : go surgery for the correction of the disc and nerve injury >: despite. the fact that such surgery is recommended’ ‘by all. doctors concerned. o 20. Statistics establish the fact that peeae: 60 and ~ 10 per cent of those undergoing similar surgical procedures to those recommended in this case fully recover from their . ‘disability while approximately 10. per cent will experience no improvement in their condition at all after surgery. ' The remainder will have a limited amount of disability in- sofar as performing heavy manual work even after sur- gery. There have been isolated “cases where, after such surgery, the patient has been worse off than he was before | surgery, but this is extremely rare. According to all of © the medical testimony, the odds are overwhelmingly in favor of libelant’s condition being substantially improved if. the recommended surgery is performed. The surgical procedures recommended, i.e., repair of the ruptured inter- oO 19 | a vetebral disc, together with a ‘spinal fusion, is not an un- usual or rare procedure but is one that is being performed. - daily, with: increasing frequency throughout the world. Even though libelant refuses, at, this time, to, submit to fe . such surgery, he does indicate, and the Court believes, that he will, if his back trouble continues, submit to such pro- — cedures for he says that he will only submit to surgery “as a last resort.” 2 e CONCLUSIONS OF LAW | 1. The Court has jurisdiction over this matter under its admiralty and general maritime jurisdiction, and venue ° is property ae in the astern District of Louisiana. . 2, The wasneniy of seaworthiness owed ‘by a ship- owner to the members of its crew is a non-delegable. duty and is extended also to longshoremen engaged in the load- ing and unloading of the vessel. Seas Shipping Co. v. Steracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). It is. also extended to shore-based workers doing the type - of work aboard a vessel i in navigation which is customary - or traditionally done by seamen, even t ough they are employed by third parties such as shipyards, marine con- . tractors, ete. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, . 74S. Ct. 202, 98.L. Ed. 1483 (1953). The Tungus v. The ‘Skovgaard, 358 U.S. 588, 79 S. Ct. 508, 3 L. Ed. (2d) 524 (1959) ; Pinion v. Mississippi sagas Co., 156 F. ae. 652 (E.D. La. 1957). | ° ) | ihe ‘detain whether or not the warranty of sea- _ worthiness is extended to a shore-based worker who per- forms labor on a ship which is not ready fot.a voyage but — is docked in a private shipyard for repairs, overhaul, or ‘maintenance, the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature ° ° en 20. "of the work senitestel to be done rather than upon ‘the specific type of work that each shore-based workman is ‘doing on shipboard at the moment of injury. West v.. Unitéd States, 361 U.S. 118, 80'S. Ct. 189, 4 L. Ed. (2d) 161 (1959). The character :of the work to be done by the ~ shipyard must be considered as must the: presence. or ‘ab- sence of a crew performing the customary work of seamen on shipboard and the consequent measure of control or lack | : of control by the shipyard over the vessel as a whole. Law- —— lor v. Socony-Vacuwm, Oil-Co., 275 F. 2d 599 (CA 2 1960) cert. den. 368 U.S. 844, 80S. Ct. 1614, 41. Ed. (2d) 1728 — (1960). 7 4. After considering all of these dissin. the cui concludes as a matter of law, that in view of the pattern of the repairs and the nature of the work to be done by’ _ both Dravo and the engineering crew aboard, the M/V ‘MARINER was a vessel in navigation at the time of libelant’s injury ; that libelant was performing work tra-: -. ditionally performed by.seamen (removing a bearing from a propeller shaft); and that he was, at the. time of his * injury, ‘entitled to the warranty of seaworthiness. Lawlor v. Socony-Vacuwm Oil Ci Co., supra. 5. The ae lumber used in the seaffold on which libelant was required to work caused the M/V MARINER. ‘to be unseaworthy. and the unseaworthy condition was the ‘proximate cause of libelant’s i injury. . | In: view of Union’s. non-delegable duty to furnish ae seaworthy vessel to all to whom the. warranty of sea- worthiness is extended, Union Barge Line Corporation, as _ owner and operator of the M/V MARINER at the time of libelant’s injury is liable to him for all damages sus- tained by him as a result of this unseaworthy condition. —— Ballwanz v. Isthmian Lines, 819 F. 2d 457 (CA.4 1968); oe. | 21 _ Thompson’ ‘”, Calmar S.S. Corporation, 331 F. 2d 657 (CA. » © 81964) ; Provenza v. American Export Eines; Inc., 324 F. . 2d 660 (CA 4. 1963). - 4 7. Since the Court has dound, as a fact, that the un _ es “seaworthy condition causing _libelant’s injury was caused — entirely by the failure of Dravo Corporation: to perform a its work under its contract with Union in & workmanlike ~ . .manner, Dravo is liable over to Union for the full amount of the award herein made to libelant, together with costs — and reasonable attorney fees. Ryan Stevedoring Co.,. Inc., v. Pan-Atlantic S.S. Corp.,. 350 U.S. 124, 76 S. - 232, - 100 L.-Ed. 138 (1956). ' 8.. As a. matter. of law, Aetna Gauss and ie . Company, as ‘intervenor, is entitled to recover from libelant all amounts paid as. compensation and for medical expenses -. ‘to libelant pursuant to the provisions of the Longshore- — men’ s and Harbor Workers’ Compensation Act. é ' 9. The award of.damages for personal injuries is of hecessity somewhat arbitrary and varies greatly with the- ‘ facts and cireumstances-of each case. Dark v. Brinkman, 186 So. 2d 463 (La. App. 8rd Cir. 1962).. In trying’ to _ assess the amount of future loss of earnings as well as probable future pain and suffering, the totality of sir- ‘cumstances must be considered. After a careful consider-. ~, atjon of all of the factors involved in-this case, it is con- cluded that, as a matter of law, libelant is entitled to recover from Union Barge Line Corporation and Aetna . -Casualty and Surety Company, in solido, the sum of - $45,000 for all elements of damage resulting from this accident, including all past, present and future medical expenses, pain and. suffering, disability, loss of earnings, — and any and all other damages of any kind resulting from . _ this accident. Judgment ‘will also be rendered herein in mere 99 favor of Union and its i insurer, Aetna, and against Dravo - libelant, together with costs and a reasonable attorney fee, and in the event the amount of the attorney fee cannot be -;. . agreed upon by counsel, the question of the amount of the bh ee will be submitted to the Court: for determination. — J udgment will be rendered against libelant, Union and the M/V.MARINER, and: in favor. of Aetna as Dravo’s com- pensation insurer, for the total amount of compensation and medical. payments made to libelant under the Long- - shoremen’s and. Harbor Workers’ Compensation Act. 7 Counsel are requested to submit to the Court a pro- posed form of emer to be entered in accordance here- with. . ni Baton Rouge, Louisiana, March 30, 1965. /s/ E. Gordon West UNITED STATES-DISTRICT JUDGE - ~ ie for the full amount of the award hereby made in favor of . a | (Title and Number Omitted) | (Filed: April 13, 1965) “FINAL DECREE _ The above entitled action having come on for oe in this Court on the 2nd and 3rd days of November, 1964,. _the parties having appeared by their respective counsel, and the Court, after all of the proof of the parties had been - | taken and briefs filed, having rendered its opinion and ~—- -. made its findings of fact and conclusions of law,’ filed herein under date of March 80, 1965, ‘it is: : ORDERED, ADJUDGED _AND DECREED that _.Walter M. Allen have and judgment is hereby rendered - herein in his favor against Union Barge Line Corporation - and Aetna Casualty And Surety: Company, in solido and against the M/V MARINER in rem, for the-sum of FORTY-FIVE THOUSAND AND NO/100 ($45,000.00) DOLLARS, together with interest at the rate of five (6%) er cent from judicial demand and all costs; IT IS FURTHER ORDERED, ADJUDGED 4 AND DECREED that judgment be and the same is hereby ren- = dered in favor of Union Barge Line Corporation and Aetna . Casualty and Surety Company, against Dravo Corporation in the sum of FORTY-FIVE THOUSAND AND NO/100 ($45,000.00) DOLLARS, together with interest at the rate of five {5%) per cent from.date of judicial demand and . all costs, plus attorneys fees in the amount of TWO. THOU- | SAND AND NO/100 ($2,000.00) DOLLARS. ; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment be and same is hereby rendered herein in favor of Aetna. Casualty and Surety Company ~~ and against Walter M: Allen, libelant, Union Barge Line massages ahd (sic) the M/V MARINER i in the sum of >. 247° . TWO THOUSAND THREE HUNDRED THIRTY-TWO - - ,AND 46/100 ($2,382.46) DOLLARS, being the amounts — previously paid to libelant by Aetna Casualty and Surety Corporation and the \M/V MARINER in’ the. sum of the. Longshoremen and Harbor Workers’ Act. THUS DONE AND SIGNED in Open Court on y tin | 19th day: of April, 1965, at Baton Rouge, Louisiana. — fs/ E. ‘Goidon West *®JUDGE, THE UNITED STATES _. DISTRICT COURT. Pur \ \ \ » gy BB. 3 APPENDIX “BY aie 'oOIN THE | | ’ UNITED STATES COURT OF ‘APPEALS 7 ie FOR THE FIFTH CIRCUIT | No. 22763 ss UNION BARGE LINE CORPORATION and...’ AETNA CASUALTY AND SURETY COMPANY, Appellants . f Sie MME, hoe west } WALTER M.. hasrsivck gee ‘ Me imngel WALTER M. ALLEN, i: ae ; Appellant, versus ® 2. UNION BARGE LINE CORPORATION, AETNA © _ CASUALTY AND SURETY COMPANY, _ and the M/V MARINER, : a. - Appellees. sa as DRAVO CORPORATION, 3 | 7 Appellant, * versus : UNION BARGE LINE CORPORATION and | en ciae CASUALTY AND SURETY COMPANY, -» Appellees. | Appeals Paine the United States District Court for the. | Eastern District of Louisiana. . “ (May 24, 1966.) . Before JONES « ad GEWIN, Circuit Jodees, and | NTER, District Judge. a@* . ae 26 ie PER CURIAM: We find ourselves in agreement with ° the opinion and decision of the District Cont reported in 239 F. Supp. at p. 1004. | _ ‘The judgment is theréfore AFFIRMED. eo, JONES, Cireuit j adge, Dissenting 7 es * . Phe facts aré set forth i in the district court’s findings. .. ‘Allen v. Union Barge Line Corporation, 239 F. Supp, 1004. _ - The M/V Mariner was in drydock undergoing an overhaui. Dravo Corporation was doing the work. Allen was its em- “ ployee. Allen was on a scaffold erected by Dravo. Allen was engaged in the removal of the propeller shaft and specifically.was either taking off ot putting on-a coupler. ‘bearing. The scaffold collapsed and he was hurt. I cannot . — ; agree that the vessel’ was in navigation or that Allen was ‘engaged in work customarily performed by seamen. To _ affirm, as the majority does, seems to me an, unwarranted extension of the. doctrines announced in Ryan’ and Ster- acki,? therefore I — eee ,at ie ee 0: ee 1 Ryan: Stevedoring ; , age en eants 8s. Corporation, . U.S. 124, 76 8. Ct. 282, 100 Le Bd ae 2 Seas § hipping Co. v. Sicracki, ‘338 US. 85, 66 8. Ct. 872, 90 L, Hd. a Scenes “c” ce ee Uwe STATES COURT OF. APHEALS" ~ FOR THE FIFTH CIRCUIT. 4 * October Term, 1965 No. 22768 . : —— - 3 sad D. C. Docket No. 739-Admiralty:. “UNION BARGE LINE “CORPORATION ‘ma Fa Se ants, ; AETNA CASUALTY AND SURETY, pep iy se versus oe , | WALTER M. ALLEN, ; ie Be cnet WALTER M. aes EE hi viiage in, Appellant, _ versus UNION BARGE LINE CORPORATION, ce _AETNA CASUALTY AND SURETY COMPANY, D and the M/V MARINER, DRAVO CORPORATION, ey stumaaie versus - UNION BARGE LINE CORPORATION and. | AETNA CASUALTY AND SURETY COMPANY, Appellees. Appeals from, the United States District Court for the . - * Bastern District of. Louisiana. cout Before J ONES and GEWIN, Cireuit J aden and | ES, ) . HUNTER, District Judge. ie . 9 - _ Appellees. — . . the récord from the Unit Sta 8 28° This cause came on to be. sf on the transcript of Eastern District of Louisiana, ahd was argued by counsel ; oe CONSIDERATION WHEREOF, It. is how -here ordered and adjudged by this Court, that the judgment of.” - the said. Disfyict Court in this cause be, ‘and the same is hereby, affirmed ; ' appellees, Union Barge ‘Line Corporation and Aetna Cas- J ONES, Circuit Judge, diene i It is further ordered and wajunen that the paella ualty ard Surety Company, ‘be. condemned, in solido, to pay the costs of this cause in this Court for which execution _ may be isshied out of the aid District Court. . : ph , . = Issued ds Mandate: | ay AY s ‘ : | - ° ’ pice % oe : . . o : ea. | ie ; i eA ; ests Pa . oe ms Sil ° ; P. ed 4) ae : : : 3 a f a oe ‘ = ‘ “. F ~ ; rT] a : e ” s “JUDGMENT. .- 2. District Court for the - May 24, 1966" ere, ] : & 2 i - UNITED STATES. COURT OF APPEALS _ : FIFTH CIRCUIT... - ph ee Office of the Clerk “EDWARD Ww. WADSWORTH 7 . Room 408 — 400 Royal Street - Clerk’ ot ie New Orleans, La. 70130 af / dita 29, 1966 Lie? No. 22763—Union Barge Line Corp. and Aetna ‘Casualty and Surety Company vs. Walter M. Allen; Walter M: Allen Vs. Union Barge Line Corp., Aetna Casualty ‘and Surety Co: and the M/V Mariner; . Dravo Corp. vs. Union Barge Line Corp. — Aetna “e bie and Surety Co. Gentlemen: Se ee = mae - You are hereby atvind that the court a ‘today en- : tered an order denying the Petition for Rehearing in the above case. No opinion ‘was: rendered i in | connection there- with = a ; J ones, C. d; ‘Dinseating. = Mr. George B. Matthews e.. | (Stamped) EDWARD: W. WADSWORTH | EDWARD W. WADSWORTH Clerk . Attorney at Law. New Orleans, La. | '. Mr. George V. Baus. - oe a ee . . Attorney at Law Aaaeaaie Katia, eas oo New Orleans, La. ‘Mr. John L. Avant. at ae ene. . Attorney at Law ont u Nee Baton Rouge, La. : J he es he ee 30. mg IN THE : , UNITED STATES COURT OF APPEALS -. FOR THE FIFTH CIRCUIT ~ 0 8 . No. 22768 3 a UNION BARGE LINE CORPORATION and. AETNA CASUALTY AND SURETY. COMPANY, ee >, ; ne - mers : VS. F Toe, tae ; "WALTER M. ALLEN, 3 : 7 Appellee. WALTER M. ALLEN, | cs i. : Appellant, VS. UNION: BARGE LINE CORRORATION, _AETNA CASUALTY AND SURETY COMPANY, 7 AND THE M/V MARINER, — ae mike i Ag - UNION BARGE LINE CORPORATION, 3 AETNA CASUALTY AND- SURETY COMPANY, . _Appelies. ‘delta hom the the United States’ District Court joi the ‘Eastern District sid Louisiana. | “(August 29s 1966) _ “Sy Appellant, @ aeereneennee . . eeeniecs ON PETITION. FOR REHEARING _ Before JONES and GEWIN, Circuit Judges, and HUNTER, District J _ PER. CURIAM. Upon sisting the petitions for itn filed by. Appellants, it. is ordered and decreed that same be and | are hereby | - ss DENIED. & --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0107%3A1. Public record. Not legal advice.