Petition for Writ of Certiorari — Rodriguez v. Alcoa Steamship Co.

Supreme Court brief1967

Ask Donna

What actually matters in this document.

Text

ar) {tr > _ " 4 |

BL RARY >), | OMflee-Sipreme Geurt, U

JUN 30 1967

ae in in bis

| Supreme Court of the Anited &

OcroBrR Term, 1967.

me BLT

_ANTERO PEREZ RODRIGUEZ,

_PETITIONER,

ALCOA STEAMSHIP COMPANY, INC.,

RESPONDENT. :

DP:

_ PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Harvey B. Nacuman

“P.O. Box 2407 °

San Juan, Puerto Rico 00903

Counsel for Petitioner

Harvey: B. NacoMan

Stanuey L. Fevpsrer

NacHMAN, Fe.pstern, LaritTEe & SmirH

Of Counsel.

sei Blanchard Press, Inc., Boston, Mass. — Law Printers —

SAN OTIS PO LT fat te 0 eS

j ‘

, >

; ‘ a

‘

, .

a ’

: a

3 , :

=f . ry) .

: .

° g

oom

j é

5 A

é : :

2 :

; ¥

‘ i e!

; i

? .

e a

Opinions Below ........... Ve SDR aig, “GLUT ee

Jurisdiction ............ SS GRO pap

Questions Presented....:..... BOD boli icc mliay

Statutes Involved .... coe Bey onl bois Se FORE

Statement of The Case ................ b. Miaegos 4

Reasons Relied on For Granting The Writ: r

A. In deciding that Puerto Rico could. deprive the:

libellant_of a substantial admiralty ‘right as de-

fined by -controlling interpretative: decisions of

this Court, the Court-of Appeals for the First

Circuit has issued a decision on an important

question of Federal Admiralty and Maritime Law

that is irreconcilable with the Constitution of the

United States, authoritative decisions: of this

Court and decisions of the several Courts. of

~ Appeals and District Courts of the United States.

B. In deciding that Petitioner was barred by: the

- local compensation statute -from pursuing his

Federal remedies for a maritime claim, the Court

has decidéd a question of Federal Maritime Law

directly in conflict with the decisions of other

Courts of Appeals and*with its own decisions. ..

C. In deciding that Petitioner could not pursue his

- In Rem remedy, the Court of Appeals for the |

First Cireuit has decided a question of Federal

Maritime Law directly in conflict with the au-

thoritative decisions. of this Court and . other

Courts of Appeals. ea Steg dew eee PE SINE NS

Conclusion .......:...... eres Tris chy Nine iy 0

Appendix A, Opinion of The, Conrt of Ane oD > ACK

Appendix B, :

i. Opinion, 1 Cir, April. 20, 1967, Alcoa Steamship

Componss Inc, v. Velez ........ reer ee ee cy

ii eee , _ Index

. igs | Page

2." Opinion, Supreme Court t Puerto Rico, December

: 18, 1963, Inter-Island Shipping ‘Corporation v. |

Industrial Commission of Puerto Rico ........ i @

3. Opinion, Supreme Court Puerto Rico, December |

- * 18, 1964, Cortijo Walker v. Puerto Rico Water,

_ Resources Authority .......0....00 800 eb eb eae 58

_ 4, Opinion, Supreme Court Puerto Rico, January

‘ 20; 1965, Marcano Torres v. Puerto Rico Water

Resources Authority .......... i tale 8 Sitis 87

CrraTiIons ac

Cases Cited - hte se

Alcoa Steamship Company, Ine. v. Velee, 1 ‘Gir, 1967,

ee Le ene aes sige & sso te 4 64 ri ese 15, 20 ©

_ American Export Lines, Ine. v. Revel, 4 Cir. 1959, 266°

‘nr Mtr ee oo rene tom ee one rene ete 21

Atlantic Transport Co. v. Imbrovek, 1914, 236 US. 52,

84 S.Ct. 733, 58 L. Ed. 1208... Ree Ra Ss 14

The Barnstable, 1901, ‘181 U.S. 464, a S. Ct. 684, 45°.

Ne OE eee ce rier emer ny 24 -

_ Biggs v. Norfolk Dredging Company, 4 Cir. 1966, 360

oo acres ce hab es koe 7,12.

Bordas ¢ Company v. indéivd Serrano, 1 Gir. 1963, 314 ©

re oe IL are cos ce eats ch oe Regs Ree res 8

Brown v. Duncan, ELD. La. 1961, 199 F. Supp. 399 . 7

Burns‘Bros. v. Central R. RB. of New Jersey, 2 Cir. 1953,

* EE vce nerfs 0g hagas 23

Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S. Ct. 1569,

Sy detente Ne ie rie emis pier ele 15

Canadian Aviator, Ltd. v. United States, 1945, 324 U. S.

215, 65 8. Ct. 639, 89L. Ed.901... 2... 4 |

Carrolt v. 8S. Santa Rosa, S.D.N.Y. 1966, 257 F. ‘Supp. »

The China, 1869, 74 US. (7 Wall.) 53, 19 L. Ed. 67 .

- The City of Norwich, 1886, 118 US. 468, 6 S. Ct. 1150,

30 L. Ed. 134 Seda nat se o's neces ped: MeL Saree . 24

oo bide : - RN REET IN, AMER NN WRN BE NR 0 IN IE ETI LLD RELY Se

- . : c a . ry

Index iii.

, 7 Page

Compania Transatlantica Espanoia, S.A. v. Melendez

_ Porres, 1 Cir. 1966, 358 F.2d 209 . ey aT SAE ‘Tele me 18, 20.

“US, 19, 80 S. Ct. 1470, 41, Ed. 2d1540............ 24

Cortijo Walker v. Puerto Rico Water Resources Au-

hia ay Dec. 18, 1964, . pe B.R. — SNS Fangs 19

denied, 365 U.S. 860, 81S. Ct. 826, 5 L. Ed. 2d 822. 8, 20

Garcia v. The Beauregari, asian 1961, 193 F. Supp.

Von see MRAP eT POR ORE 23

Garrett v. Moore. McCormack Co., 1942, aid US. 239, 63 *

S. Ct. 246, 87 L. Ed. 239 ...... ies Meas Pea ee ol! 15

Grace Lines, Ine. v. anton 9. Cir. 1966, 366 F.2d

nc LIRR ECE? Alias CEM Ten ane 4, 12

Grillea v. United States, 2 Cir. 1956, 232 F.2d 919 ..... 23

Guerrido v. Alcoa Steamship Co.,1 Cir. 1956, 234 F. 2d

as Fess etn) By oe 8,13

Gutierrez v. Waterman Sicomehis Corp., 1963, 373 U. S..

206,. 83 S. Ct. 1185, 10 L. Ed. 2d 297 .............. 21

8 L. Ed. WPM Ss vette eel eatetc oe a 93, 25

Hagans v. Ellerman & nae 8.8. Co., 3. Cir. 1963,

sions ae, CE RE " )

Hertel v. American Export Lines, Inc., 8. DN.Y. 1964,

a0 Fs Supp. 708... ese ee. 7,13

Hudson Steamship Company v. Ayala Colon, 1 Cir.

1963, 314 F, 2d 44 by tHe Pelee tae re doov dal aat 8

_ mission of Puerto Rico, Dec. 18, 1963, — P.RR. 19°

Italia Societa Per Azioni di Navigacione v. Oregon. .

Stevedoring Company, 1964, 376 US. 315, 84. B. Ct.

748, 11 L. Ed. 24 732... Sa ee eens

. iv diye | Index.

Page Q

; Jackson v. Lykes bene Steamship Co., 1967, — US. ot

—, 87 S. Ct. 1419, 18 L. Ed. 2d 488 ....... on Coase 11, 23

Pe Just v. Chambers, 1941, 312 ae 383, 61 S. Ct. 687, 85

ee MIE 508k oui dh Rae diag ten bande Saha a pw bie 15 ©

Kelly v. State of Washington, Ex Rel, Foss Co., 1937,

302 U.S..1, 58 S. Ct. 87, 82°L. Me erg ah. +15

- Kermarec v. Compagnie Generale Tienaaleitlaus, .

1959, 358 U.S. 625, 79 8. Ct. 406, 3 L. Ed. 2d 550 . 14

‘Knickerbocker Ice Co. v. Steward, 1920, 253 U.S. 149, :

40 S. Ct. 488, 64 L. Bd. 834 2.00. ark

Koninklyke N ederlandsche, Etc. v. Strachan Shipping.

Co., 5 Cir. 1962, 301 F.2d 741 ......-.. 2.650. n eee. 21

Lastra v. New York & Porto Rico 8. S. Co., C.C.A..1st,

,) A 8 eres eee errr ees 8,12

Lawlor v. Socony. Vacuum Oil Prices 2 Cir. 1960,

275 F.2d 599, cert. denied, 363 US. 844, 80 a. Se

1614, 4 L. Ed. 241728 ....... is hs ae ea eebaec 7

Leotta v. The Esparta, S.D.N.Y. 1960, 188 F. Supp. 168 23

The Little Charles, C.C. Va., 1819, 26 Fed. Cases 979,

_ Case No. 15,612 °........ a GRD ag ie dicate sey aise ary 24

-Mahnich v. Southern Steamship Co., 1944, 321 US. 96, ;

648. Ct. 455, 88 L. Ed. 961 .. 2... eee 7

_ Marcano Torres v. Puerto Rico ‘Water Resources Au-

_ thority, January 20, 1965, poe) * Skee 19

- McCross v. Ratnakar cette Co,, D. Md. 1967, 265 |

VW, Shei. GOT es ea ie ee eget eat eens 21

Miculca v. American Mail Lines, Ltd., D. Or. 1964, 229°

F. Supp. es es eat: Vccyas to wen eee . 7,18

“New York Dock Co..v. The Poznan, 1927, 274 U.S. 117,

“ATS. Ct. 482, 71 L. Ed. 955 2.0.0... eee 24

- Noel v. Isbrandtsen Company, 4 Cir. 1961, 987 F.2d 783,

cert. denied, 363 U.S. 975, a8. Ct. 1944, 6 L. Ed. 2d 3

PR Ss Re ae eee ee ee et re ee ee 25

760: Lb Gthce We 6:50 €30 ee BES, S ADE AG HOF a BRS 2 DO's ee 13

Index. , ae

: , Pee Page

Pacific Inland Néwigation Company v. Course, 9 Cir. | ’

‘ 1966, 368 F.2d 540 2... ee. pet an 4 Soge 7,12

*°o

The Palmyra, 1829, 25 U.S. (12 Wheat.). 1, 6 L. Ed. 531. 24 —

Panama R. Co. v. Johnson, 1923,.264 U.S 375, 448. Ct. |

391, 68 L. Ed. 748 ~ 0... nee fa TAPER: i AT Bp ne % 18 _-

- Pope & Talbot, Inc. v. Hawn, 1953, 0 US. 406, 7 bee 4]

S. Ct. 202, 98 L. Ed. 143 ............... GER 11, a 15 | °

_ Reed v. Steamship Yaka, 1963, -373.U.S. 410, 83 S. Ct. |

1349, 10 L. Ed. 2d 448 ......... 6... 7, 8, 9, 10, 11, 22

- |. Reed v. Steamship Yaka, 3 Cir. 1962, 307 F.2d 208 . 23

Reed v. The Yaka, E.D. Pa., 1960, 183 F-. Supp. 69 . ~ 93

Romero v. International Terminal Operating Co., 1959, :

358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 |... -.. 13,18

Ruiz Pichirilo v. Maysonet Gueman, 1-Cir. 1961, 290

‘FP O6 OB oS oe EIT Ae Be oe ror 23, 25°.

___ Ryan Stevedoring Co. v. Pan Atlantic 8.8. Corp., 1956,

350 U.S. 124, 76.8. Ct. 232, 100 L. Ed. 133.. 8,9, 16,19, 20 .

Santiago v. Hermanos, D.P.R. 1966, 255 F. Supp.932 . 8, 16°

Scopaz v. 8.8: Santa Luisa, 2 Cir. 1967, 372 F.2d 403°. 7, 12

Seas Shipping Co. v. Sieracki, 1946, 328 US. 85, 66.

S. Ct. 872, 90 L. Ed. 1099 ...................°.... 13

_- Southern’ Pactfic Co. v. Jensen, 1917, 244 US. 205, 37

S. Ct. 524; 61 L. Mid. 1066 2... 2... lee. 18

State of Washington v. W. C. Deusen Co. 1924, 264

‘U.S. 219, 44 8. Ct. 302, 68 L. Ed. 646... 18 .

United States v. The Malek Adhel, 1844, 43 US.

(2 How.) 210, 11 L. Ed. 239......... _ ete. Rerere a ;

Vitozi v. Balboa Shipping Co., C. C.A. Ist, 1947, 163 - |

F.2d og a Make Vas see rewek ae evi cen Meee ood De a

L. Ba.5 ee. sept bs PaRue oh be UN Hoe e La eS 10 -

Waterman S.S. Co. v. Dugam ¢ McNamara, ind, 1960,

"364 U.S. 421, 81 S. Ct. 200,'5 L. Ed. 24169 ..... BOTT

Waterman Steamship Corporation v. Rodriguez, 1 Cir. 7.

1961, 290 F.2d 175 finsis BOS ae es je ed ota vi meee

vi an Index ©

: ~ Page

. The Western Maid, 1922, 257 U.S. 419, 42 S. Ct. 159, 66

Re Oo ote is an Se mae RTE ee ee me ees , 25

Weyerhaeuser 8.8. Co. v. Nacirema Operating Co.,

1958, 355 U.S. 563, 78 S. Ct. 438, 2 L. Ed. 491 VW

“Constitutional paisa:

"Constitution, Article ITL,.§2 .............---. _.. 8,18, 20

_ Constitution, Article IV, §2, Clausel -..........- ure

Constitution, Amendment XIV,-§1 .......--. rene 4, 20

; Statutes

Federal Longshoremen’s and Harborworkers’ Com- .

pensation Act, 33 U.S.C.A. $905 .........--- 4, 8, 10, 23

| J ones Act (Merchant Marine Act of 1920, sient 33),

me GF ea err eer ee parer 20 --

Public Vessels Act, 46 U.S.C.A- §§ 781-790 . Serre 25

* Puerto Rico Federal Relations Act:

48 U.S.C.A. sme (Public Law 600, § 3, 64 Stat.

a 5 sa Vest = tees oness cage cpt ssacr sense 17

48 U.S:C.A. § 737 (Public Law 600, §5 (1), 64 Stat.

eer pec Whee ok oe ela aa wa aeiaahn SAY 5, 16, 20

- Puerto Rico Workmen’s Accident Compensation Act:

11 L.P.B.A. §§ 1-42; 11 L.P.E A. $21........ 5, 7, 12, 19

98.U.8.C.A. § 1254 (1)... . 66. eee erent 2

98 U.S.C.A. § 2101 (¢) ....---- eee ee wets a i

28 U.S.C.A., Rules, Revised Rules of the Supreme

Court, Rule 19 (b) .....-..--- 5+ see Pr) patty: 2

31 Stat. 79 (1900); 48 U.S.C.A. § 744 ......-. Terie ae

| Miscellaneous .

Gilmore & Black, The Law of Admiralty eres a

Holmes, The Common Law ......-.-- ee 94

Note 35 . John’s L. Rev. 324 (1961) ......-...----. — 20

ve: an the Leeda

| Supreme Court of the Anited States

-- Ocroser Term, 1967.

No.

ANTERO PEREZ RODRIGUEZ,

- PETITIONER,

Vv.

‘ALCOA STEAMSHIP COMPANY, IN C.,

RESPONDENT. ° “

PETITION FOR WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

- To THE HonoraBie, THE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE SuPREME Court oF THE Unirep Srarss:

The petitioner, by his counsel, Harvey B. Nachman, re-

‘ spectfully petitions this Honorable Court to issue a writ of

certiorari to review the judgment of the United States

Court of Appeals for the First Civeuit, which reversed the

decree in favor of petitioner and remanded the case to the -

District of Puerto Rico with directions to dismiss the libel,

and, in support of his petition does show:

1. The opinion of the United States Court of Appeals _

for the First Circuit has been reported at 376 F.2d 35 and .

a copy of said opinion is appended hereto at pages 27 to

34 infra; the opinions of the United States District Court .

for the District of Puerto Rico on the exceptive allegations

are contained in the certified record at pages 8 through 10

and at pages 19 through 21; the findings of fact, conclu-

sfons of law and decree on the merits, after the case was

submitted on a stipulated set of facts, are contained in the

certified record at pages 25 through 27. ay

2. The judgment ofthe United States Court of Appeals

for the First Circuit reversing the judgment of the District

Court of Puerto Rico and ‘yemanding with directions to

enter a judgment of dismissal, is dated April 20, 1967.

- Jurisdiction

3. The jurisdiction of,this Honorable Court to review

by way of writ of certiorari is based on the United States

- Code, Title 28, §§ 1254 (1) and 2101 (c), and Supreme

Court Rules, Rule 19 Subsection1(b). . - Rae

Questions Presented

A. Is a LonasHoREMAN INJURED IN NAVIGABLE WATERS OF

_ Pugrto' Rico on an UnseawortHy VESSEL OWNED BY

His Empioyer BarreD FROM. RECOVERY FOR VIOLATION

or His Feperanty Create Maritime Ricuts MERELY

Because THE Emptoyer Is Insurep UNDER THE Work-

men’s AccipENT CoMPENSATION AcT OF Puerto Rico?

This question comprises several gubsidiary questions of |

critical importance in the administration of the admiralty

law: | ETS

(1) Whether a political subdivision of the United States

has the power to enact legislation inconsistent with the

federal maritime law in view of the constitutional require-

iments of uniform application of the maritime law and that

all citizens are entitled to the equal protection of the laws;

(2) Whether the legislation in question is in harmony

_with the maritime law, as concluded by the United States

District Judges for the District of Puerto Rico, or whether

there is a conflict hetween the legislation and the maritime

law, as decided by the Court of Appeals ; and

(3) Whether Congress, which is not permitted to dilute

.a longshoreman’s rights under these circumstances, has

the power to delegate. such authority to the lesscoeceianie of

Puerto Rico.

B. May 3 a Puerto Rican LonesHoreMan INJURED ON AN

UNSEAWORTHY VESSEL IN NAVIGABLE WaTERS BE DE-

PRIVED OF His Maritime Lien anp In Rem Remepy, Ir

THE SHIPOWNER Is PERSONALLY Exonsnarep FROM Lia- ,

BILITY BY "Loca SratuTe? |

5. The constitutional prestaleins involved are:

United States Constitution, Article ITI, ¢ 2:

‘‘The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be’ made, under their Authority ;—to all

Cases affecting Ambassadors, other public Ministers

and Consuls ;—to all Cases of admiralty and maritime

Jurisdiction ;—to Controversies to which the United

States shall be a Party;—to Controversies between

two or more States ;—between a State and Citizens of

another State ;—between Citizens of different States,—

between Citizens of the same State claiming Lands —

under Grants of differént States, and between a State,

or the Citizens thereof, and foreign States, Citizens or

Subjects.” 3

Amendment XIV, § 1:

‘‘All persons born ‘or. naturalized in the United

States,.and subject to the: jurisdiction thereof, are

citizens of the United States and of the State wherein

_ they reside. No State shall make or enforce any law _

| which shall abridge the privileges or immunities of ~

-- Gitizens of the United States; nor shall any State de-

prive any person of life, liberty or property without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Article IV, § 2, Clause 1.:

— “The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in thé several

States.’’ . |

The statutes involved are:

- Public Law 803 of March 4, 1927, c. 509, ¢5, 44 Stat. —

1426, 33 U.S. Code, § 905: oe

‘The liability of an employer prescribed in section

904 of this title shall be exclusive and in place: of all

other liability of such employer to the employee, his ©

legal representative, husband or ‘wife, parents, de-

pendents, next of kin, and anyone otherwise entitled

to recover damages from such employer at law or in

admiralty on account of such injury or death, except

that if an employer fails to secure payment of com-

pensation as required by this chapter, an injured em- -

ployee, or his legal representative in case death results

from the injury, may elect to claim compensation

under this chapter, or to maintain an action at law or

in admiralty for damages on account of such injury .

. or death. In such action the defendant may not plead

as a defense that the injury was caused by the negli-

gence of a fellow servant, nor that the employee as-

sumed the risk of his employment, nor that the injury

was due to the a racine the em-

_ployee?—» ——— |

ee es

Publi¢ Law 368 of March 2, 1917, c. 145, § 2, 39 Stat.

951, Title 48 U.S.C.A. § 737, amended in Public Law 362-of

August 5, 1947, c. 490, 4 7, 61 Stat. 772, 48 U.S:C.A. § 737,

continued in effect by Public Law 600 of July 3, 1950,

ce. 446, § 5 (1), 64 Stat. 320, 48 U.S.C.A. § 737:

‘‘The rights, privileges, and immunities of citizens

of the United States shall be respected in Puerto Rico

; to the same extent as though Puerto Rico were a State

of the Union and subject to the provisions of para-

graph 1 of section 2 of article IV of the Constitution |

of the United States.’’

Law No: 45 of 1935, Laws of Puerto Rico, p. 250, §: 20,

Laws of Puerto Rico Annotated, Title 11, ¢ 21:

‘‘When. an employer insures. his thule or em-.

ployees in accordance with this chapter, the right

herein established to obtain compensation shall be the.. -

only remedy against the employer; but in case of acci-

dent to, or disease or death of, the workmen or em- ~*

i _ -ployees not entitled to compensation under-this chap-

ter, the liability of the employer is, and shall continue

to be, the same as if this chapter did not exist.’’

Statement of the Case - Raises '< 3

‘ : tes ae

On May 14, 1963 Antero Perez Rodriguez was employed

as a longshoreman by the Alcoa Steamship Company to

discharge its vessel, the SS ALCOA ROAMER, while said

vessel was in the port.of San Juan, Puerto Rico. The

Alcoa Steamship Company is a corporation organized in a

jurisdiction outside, of the Commonwealth of. Puerto Rico

but had registered to do business in the Commonwealth of

Puerto Rico. The vessel was a United States registered

vessel. uae

After. Hold No. 1 of said vessel had been: opened, the

libellant proceeded down the ladder in the forward section

of said hatch. As he commenced descending the ladder, the

bolts connecting the top section of the ladder either broke

or parted, causing the ladder to.swing in an-are, outward

and downward from the hatch wall. As the ladder swung,

the libellant was precipitated from the ladder in the

~ tween deck into the lower hold of the vessel. 7 ;

As a result of the occurrence, the libellant sustained

severe personal injuries consisting of, among. other condi-

tions, compression fractures of the bodies of the 11th and

12th dorsal vertebrae. oo

‘Suit was filed in the United States District Court for the

District of Puerto Rico on the 26th day of December, 1963, .

- in admiralty, by .way of a libel in rem against the vessel,

the S§ ALCOA ROAMER. (R. 5-7). The Alcoa Steamship

Company filed a claim of ownership and posted a bond for

the release of the vessel. The vessel was. released on a

letter of undertaking. ny

After the vessel was released, the claimant filed excep-

tive allegations to the libel, based on the Puerto Rico

‘Workmen’s Accident Compensation Act. (R. 7-8). The |

exceptive allegations were denied by the District Court

on July 9, 1964, the Court relying upon the decision of this

Honorable Court in Reed v. Steamship Yaka, 1963, 373 .U.S.

410, 83 S. Ct. 1349, 10 L. Ed. 2d 448. (R. 8-10). The claim- -

- ant petitioned for a rehearing on the exceptive allegations

and after extensive briefing and argument, the Court ad-

hered to.its original decision in an order dated April 15,

1965. (R. 19-21). The claimant answered and the case was

then set for trial. _

There were no disputed facts and the case was, submitted

to the court on a stipulation which included not only the ~

- manner of the happening of the occurrence, but also the

reasonable amount of damages. (R. 23-25). The District

Judge concluded that the. vessel was unseaworthy,) that

the action was not barred by the exclusive remedy pro-

vision of the Puerto Rico compensation statute, and en-

tered a decree in favor of petitionér. (R. 26-27).

The United States Court of Appeals for the’ First Cir- |

cuit reversed, ruling that Section 20 of the Puerto Rico. -

Workmen’s Accident Compensation Act, 11 L.P.R.A. § 21,

barred the libellant from recovery. In so ruling, the Court

of Appeals made no reference to the decisions of all other

federal courts.which reached the diametrically opposite

result.2, Nor did it allude to the opinion of the District

Court of Puerto Rico in another case, in which it was lield

that this same section of the Puerto Rico statute was, ‘‘not

1 The vessel was, it is contended, unseaworthy as a matter of law.

Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 64 S. Ct.

455, 88 L. Ed. 561; Lawlor v: Socony Vacuum Oi Company, 2 Cir.

1960, 275 F.2d 599, cert. denied, 363 U.S. 844, 80 S. Ct. 1614, 4

iL. Ea. 2d, 1728; Brown v. Duncan, E. D. La. 1961, 199 F. Supp.

399. The- respondent has never contested this finding.

2 Grace Lines, Inc. v. Kanton, 9 Cir. 1966, 366 F.2d 510; Pacific

Inland: Navigation Company v. Course, 9 Cir. 1966, 368 F. ‘a 540;

Biggs v. Norfolk Dredging Company, 4 Cir. 1966, 360 F.2d 360;

‘ Scopaz v. 8.8. Santa Liftsa, 2 Cir. ag 372 F.2d 403; Carroll v.

S.8. Santa Rosa, 8.D.N.Y. 1966, 257 F. Supp. 688; Miculka v.

American Mail Lines, Ltd., D. Or. 1964, 229 F. Supp. 665; Hertel

v. American Export Lines, Inc., 8.D.N.Y. 1964, 225 F. Supp. 703.

° 8 ; . . : 6

in conflict with the rules of admiralty and the general mari-

time law.’ This Court’s authoritative pronouncement in

Reed v. Steamship Yaka, 1963, 373 U.S. 410, 83 S. Ct. 1349,

10 L. Ed. 2d 448, was distinguished as being limited to the _

| interpretation df the effect of a section of the Federal

Longshoremen’s and Harborworkers’ Compensation Act,

33 U.S.C.A, 905, upon the obligation of a shipowner-em-

ployer to provide a seaworthy vessel and not binding in

the interpretation of the local statuté with respect to the -

~ same legal obligation. hepa

Relying on a line of its own prior decisions, the Court of

Appeals reasoned that although a maritime worker could

sue a third party under the admiralty law* without vio-

‘lating the spirit of the local compensation statute which

applied to maritime workers,? he could not sue his own

employer because the exclusive remedy provision of the

statute. It concluded that the Puerto Rico Workmen’s

Compensation Act has,.‘‘within the area of its applicabil- _

- ity, displaced the remedies of the maritime law.”’ Bky

In spite of the statutory language that ‘‘the right herein

established to obtain compensation shall be the only remedy

against the employer”’, the Court of Appeals has followed

this Court’s, holding in Ryan Stevedoring Co. v. Pan At-

. lantic 8.8. Corp., 1956, 350 US. 85, 76 8. Ct. 232, 100 L. Ed.

133, permitting the shipowner to bring an’ action over and

recover against the stevedore-employer.’ This Court s

3 Santiago v. Hermanos, D.P.R. 1966, 255 F. Supp. 932, 935-936.

4 @Querrido v. Alcoa Steamship Co., 1 Cir. 1956, 234 F.2d 349;

Waterman Steamship Corporation v. Rodriguez, 1 Cir. 1961, 290

F.2d 175. . 2

- '§ Lastra v. New York & Porto Rico SS. Co., C.C.A. Ist, 1924, -

2 F.2d 812. a, y toes

_ 6 Fonseca v. Prann, 1 Cir. 1960, 282 F.2d 153, cert. denied,\365

U.S. 860, 81 S. Ct. 826, 5 L. Ed. 2d 822. ; ,

” "1 Compania Transatlanticu Espanola S.A. V. Melendez Torres,

1 Cir. 1966, 358 F.2d 209; Bordas & Company v. Pizarro Serrano, .

1 Cir. 1963, 314 F.2d 291; Hudson Steamship Company v. Ayala \

Colon, 1 Cir. 1963, 314 F.2d 44. Ae

prea POLO ORE CCRT NMR OE Gy ER er

a. ue

reliance in, Reed, supra, on the Ryan doctrine was argued

to the Court of Appeals, yet the opinion omits any refer-

ence to the other line of decision of the same Court of Ap-.

peals which uphold indemnity -recovery under the Ryan _

doctrine, despite the exclusivity granted by the local |

statute.

The Court of Appeals also held that the exclusive remedy

provision of the compensation: statute, not only exonerated

the shipowner-employer. from its liability, but also extin-

_ guished the petitioner’ s maritime lien and his. im rem

remedy.

On the same day that the Court of Appeals aikiag its

decision below granting the legislature of Puerto Rico the

power to interfere with the proper uniform application of

the maritime law, it decided another case involving the -

‘same statute‘and held that the interference with the mari-.

time law could. not be upheld where the contract of em-

\ployment was not entered into in Puerto Rico. Alcoa

Steamship Company, Inc. v. Velez, 1 Cir. 1967, ... F.2d

, reprinted herein at pages 35 to 41.

Argument

A. In Decminc Tuat Pugrtro Rico Coutp Deprive THE

LiBeELLANT oF a SusstanTiaL Apmiratty Rieu as De-

FINED. BY CoNTROLLING INTERPRETATIVE DECISIONS OF

Tus Court, THE Court oF APPEALS FOR THE Fist °

Crrecuir Has Issuep a Decision on aN IMPORTANT

Question oF FreperaL ApmriraLTy aND Maritime Law

Txuat Is IRRECONCILABLE WITH THE CONSTITUTION OF

THE Unirep States, AUTHORITATIVE ‘DEcIsions oF THIS

Court anp Decisions or THE SeveraL Courts or Ap-

PEALS AND District Courts or THE UnirTep Srartes..

The decision below is a radical departure from two re-

cent decisions of this Court in which the exclusive remedy

provisions of the Federal Longshoremen’s and Harbor *

Workers’ Compensation Act® were held to be no bar to a

longshoreman’ s recovery -for unseaworthiness against his

employer-shipowner.

In Reed v. Steamship Yaka, 1963, 373 U.S. 410, 415-416,

83 S. Ct. 1349, 1353, 10 L. Ed. 2d 448, the Court said:

“In the light of this: whole’ “body of law, ented

and decisional, only blind adherence to the, superficial

‘ meaning of a statute could prompt us to ignore the

fact that Pan-Atlantic was not only an employer of

longshoremen but ‘was also a bareboat charterer and ~

operator of a ship and, as such, was charged with the |

traditional, absolute, and. nondelegable obligation of

seaworthiness which it should. not be permitted to

avoid.. We have previously said that the Longshore-

men’s Act ‘must be liberally construed in conform-

‘ance with its purpose, and in a way which avoids

harsh and incongruous results’*. We think it would

produce a harsh and tacengrecus result, one out of

keeping with the dominant intent of Congress to help

longshoremen,** to ‘distinguish between liability to

longshoremen injured under precisely the same cir-

cumstances because some drawn their pay directly

from a shipowner and others from a stevedoring com- —

pany doing the ship’s service. Petitioner’s need for

_ protection for utiseaworthiness was. neither more nor

less than that of a longshoreman working for a steve-

doring company. As we. said in a slightly different

factual context, ‘All were subjected to the same dan-

* Voris v. Eikel, 346 U. 8. 328, 333, 74 8. Ct. 88, 92, ‘98

L, Ed. 5 (1953).

** See 8. Rep. No. 973, 69th Cong., Ist Sess. (1926), H.R.

~ Rep. No. 1190, 69th Cong., 1st Sess.. (1926).

833 U.S.C.A. § 905.

a |: @

-ger. All were entitled to like treatment under the’ F

' law.’*** We conclude that: petitioner was not barred. _

by the Longshoremen’s. Act (from. relying on Pan- —

Atlantic’s liability as a shipo r-for the Yaka’s un-

seaworthiness in order to support his libel. in rem

against the vessel.’’

eygpey al

*** Pope & Talbot, Inc. v. it 346 U.S. 406, 413, 74

S. Ct. 202, 207, 98 L. Ed. 143 (1953).

On May ‘8. of this year, | the issue was reexamined in

: Sallie v. Lykes Bros. Steamship Co., 1967, ... U.S.

87.8. Ct. 1419, 18 L. Ed. 2d 488. The factual dtaition

differed slightly, in that Lykes was the ‘shipowner-em-

ployer, whereas in Reed, the employer was a bareboat

charterer. The Jackson action was filed as a suit at law

- and Reed proceeded by way of a libel im rem. & teaffirm-

ing the Reed result, the Court said:

“In this case as in Y aka, the fact that the longshore-

man was hired directly by the owner instead of by the

independent stevedore company.makes no difference

as to the liability of the ship-or its owner.: In the final

analysis the contention here against recovery as in —

Yaka is that the longshoreman who is employed to

work ‘on a ship by ‘an independent stevedore. com-

pany instead of the shipowner can recover for the un-

seaworthiness of the vessel, but; a longshoreman hired

by the same shipowner to do exactly the same kind of

work on an unseaworthy ship cannot recover. We re-

_ ject this contention as we did before. We cannot ac-

’ eept such a construction of the Longshoremen’s Act—_

an Act designed to provide equal justice to every —

longshoreman similarly situated. We cannot hold that

- Congress intended any such i incongruous, absurd, and

) unjust result in passing this congressional Act...

(87 S.Ct. at 1422, footnote omitted. ss

The decision below antedated Jackson, but the Court of

Appeals held Reed inapplicable because the governing com-

pensation statute was different. Since 1924, the Court of

Appeals has: held that the Puerto Rico Workmen’s Acci-

dent Compensation Act® is applicable to maritime workers

in the navigable. waters of Puerto Rico, a holding never

reviewed by this Court.. In reversing the District Court’s

construction of the Puerto Rico legislation, the Court of

Appeals engenderéd a distinction in rights and remedies of

one group of American longshoremen that creates unequal

treatment and unequal justice. Not only are some Puerto

Rican longshoremen deprived. of their federally created

maritime rights, but some Puerto Rican stevedore em-

' ployers may: ultimately be liable to their employees for in-

juries whereas those employers who are also shipowners

can avoid this obligation.

By its decision, the Court of Appeals for the First Cir-

cuit‘ has destroyed the uniformity of the admiralty and

maritime law in this field that had been accepted by the

lower federal courts, all of which had recognized the long-

shoreman’s right to recover for injuries sustained under

_ similar fact situations.

Grace Lines, Inc. v. Kanton, 9 Cir. 1966, 366 F.2d 510;

Biggs v. Norfolk Dredging Company, 4 Cir. 1966, 360

F.2d 360;

7 Scopes v. 8.8. Santa Luisa, 2 Cir. 1967, 372 F.2d 403;

Pacific Inland Navigation Company v. Course, 9 Cir.

1966, 368 F.2d 540;

Carroll v. S.S. Santa Rosa, S.D.N.Y. 1966, 257 F. Supp.

688 ; ;

one §§ 1-42. ‘Ge

10 Lastra v. New Y ork ¢& Porto Rico 8.8. Co., C.C. A. ist, 1924,

2 F.2d 812.

| Witte. pr en Mail Innes, Lid., D. Or. 1964, 229

F’. Supp. 665;

Hertel. v.:American Export ne Inc., 8.D.N.Y. 1964,

A 1,225 F. Supp. 703.

The shipowner’s duty to furnish a seowerthy vessel is

absolute and non-delegable. —

Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 _.

Ct.. 872, 90 L. Ed. 1099. ‘

The right to’ recover damages for injuries resulting from

unseaworthiness is a federally created right.

The Osceola, 1903, 189 US. 158, 23 Ss. Ct. 483, 47 L. Ed.

760; aot . | |

Romero v. International Terminal Operating Co., 1959,

358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368.

Only one year ago, these principles were recognized by

the Court of~Appeals. In Compania Tramsatlantica Es-

panola, S.A. v. Melendez Torres, 1 Cir. 1966, 358 F.2d 209

- at 213, said the eaaiaeas

. “The general maritime law applies in Puerto Rico

waters and the decedent here could have recovered for

unseaworthiness had he lived. Gwerrido v. Alcoa .

Steamship Co., 234 F.2d 349, 355 (1 Cir. 1956). The ©

evidence clearly shows that the defendant’s vessel and -

its appurtenances (hatch boards) were not fit for their

intended purpose. Crumady v. The Joachim Hendrick

Fisser, a U.S. 423, 79 S. Ct. ‘445, 3 L. Ed. ad 413

. (1959) ..

“2. ere hae legal right to a Deals

ship. If a person infringes upon this right and harm

14 |

results by reason of the ship being unseaworthy, such

person is at fault ...”’ me

Today the Court of Appeals inserts a caveat in the fore-

going paragraphs. It says, in effect, the general martime

law applies in Puerto Rico ‘‘sometimes’’, or a longshore-

man has the legal right to a seaworthy ship ‘‘sometimes’’,

the result depending in each case upon whether the em-

ployer happens to be the ‘owner of the vessel. But this —

Court has repeatedly said that one’s rights under the mari-

‘time law cannot -be expunged or curtailed by concepts pre-

vailing in the States. s

Kermarec v. Compagnie. Generale Transatlantique,

1959, 358 U.S. 625, 79S. Ct. 406, 3 L. Hd, 2d 550;

Pope & Talbot, Inc..v. Hawn, 1953, 346 U.S. 406, 74

S. Ct. 202, 98 L, Ed. 143.

In the Hawn case this Court said, at pages 409-410 of

the official report:

‘Nor can we agree that Hawn’s rights must be de-

termined by the law of Pennsylvania, under which, it

. js said, any contributory negligence would bar all re-

covery in, this: personal injury action. True, Hawn

- was hurt inside Pennsylvania and ordinarily his rights

"would be determined by Pennsylvania law. But he

-was injured on navigable waters while working on a

ship to enable it to complete its loading for safer

‘transportation of its ‘eargoby water. Consequently,

the basis of Hawn’s action is a maritime tort,* a type

of action which the Constitution has placed under na-

* Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 61-63, |

34 §, Ct. 733, 735, 58 L. Ed. 1208.

tional power to control in ‘its substantive as well as

its procedural features ...’ Panama R. Cov. Johnson,

264. U.S. 375, 386, 44 S. Ct. 391, 393, 68 L. Ed. 748.

nd Hawn’s complaint asserted no claim created by

or arising out of Pennsylvania law. His right of re-

covery for unseaworthiness and negligence is rooted

in federal maritime law. Even if Hawn were seeking

to enforce a state-created remedy for this right, fed- |

- eral maritime law would be controlling. .While states

May sometimes supplement federal maritime poli-

cies,** a state may not deprive a person of any sub-

stantial admiralty rights as defined in controlling acts

of Congress or by interpretative decisions of this

Court. These principles have been frequently declared

and we adhere to them, See e.g., Garrett v. Moore-

McCormack Co., 317 U.S. 239, 243-246, 63'S. Ct. 246,

249-251, 87 L. Ed. 239, and cases there cited. Caldarola

v. Eckert, 332 U.S. 155, 67 S. Ct. 1569, 91 L, Ed. 1968,

does not support the contention that a state\which un- ~

dertakes to enforce federally created martime rights

can dilute claims fashioned by federal power, ‘which

is dominant in this field.’’

* *® See e.g., Just v. Chambers, 312 US. 383, 387-392, 61

S. Ct. 687, 690-693, 85 L. Ed. 903; Kelly v. State of Wash-

ington ex rel. Foss Co., 302 U.S. ‘. 13, 58. S. Ct. 87, 93, 82

L. Ed. 3.

It is impossible to harmonize this principle of dominant

federal power in the maritime field with the decision of the

Court below. Even if the unique status of Puerto Rico

gives it a’ broader legislative power over its navigable

waters in matters of local concern that states enjoy, it may

not usurp the federal jurisdiction granted by the Constitu-

tion. In Alcoa Steamship Company v. Velez, 1 Cir. 1967,

... F.2d ..., the lower court recognized limitations upon

. 16

this legislative power. Nevertheless, in the instant deci-

sion the local statute is construed to validly destroy rights

of some American longshoremen, while preserving the right

to others on the sole criterion of whether the shipowner

is also the employer. This construction of thé local statute

had been rejected by the District Court of Puerto Rico be-

cause it would offend the legislature’s dominant intent to

protect working men and would produce a ‘‘harsh and in-

coligruous result’. —

Santiago v. Hermance, D.P.R. 1966, 255 F. il 939,

935- 936.

Puerto Rican longshoremen-are American citizens. As

such, they are entitled to the rights, privileges and immuni-

ties of all American citizens similarly situated. Public Law

600, § 5 (1), 48 U.S.C.A. § 737. The decision below denies

them equal rights and equal protection of the laws, although

for this purpose’ Puerto Rico shall be treated ‘as though

[it] were a State of the Union.”’

The doctrine of seaworthiness, as applied to martime

workers, has been fashioned by this Court as a humani-

tarian doctrine. The petitioner has been denied this right

to a seaworthy vessel without any social or economic _justi-

fication.

When one considers the issue from the complying em-

ployer’s point of view, the result is even harsher, more in-

congruous and equally unjust. This Court has ruled that a

shipowner, sued by a longshoreman who had been’hired: by

an independent stevedore, could bring an action-over and

recover indemnity from the independent stevedore despite

the fact that the liability of the stevedore under the federal

. statute ‘‘shall be exclusive and in place of all other lia- ,

bility.’’

Ryan Stevedoring Co. v. Pen Atlantic S. 8. rid 1956,

350 .U.S. 124, 76 §. Ct. 232, 100 L. Ed. 133; «

aaa ee as

isin 8.8. Co. v. Nacirema. Operating Co.,

1958, 355 U.S. 563, 78 S. Ct. 438, 2 L. Ed. 2d 491;

Crumady v. The Joachim Hendrick Fisser, 1959, 358

U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413;

Waterman 8.8. Co. v. Dugan & McNamara, Inc., 1960,

364 U.S. 421, 81 S..Ct. 200, 5 L. Ed. 2d 169; :

Italia Societa Per Azione Di Navigazione v. Oregon

Stevedoring Company, 1964, 376 US. 315, 84 8.

748, 11 L. Ed. ad 732.

The Court of. Appeals for the First Circuit has simi--

larly imposed liability on the stevedoring grag in.

spite of the fact that the local law provides that ‘‘c

pensation shall be the only remedy against the patina

Thus, a Puerto Rican longshoreman employed by an in-

dependent contractor has a right to a seaworthy vessel

and his employer may have to indemnify the shipowner,

‘while a second Puerto Rican longshoreman employed di-

rectly by the shipowner has no such right and the ship-

owner is relieved of his absolute non-delegable obligation.

Presumably, this incongruity would prevail regardless of .

the flag of the vessel as long a as the shipowner complied

‘with the local statute. '

The result is. even more incomprehensible when one

takes into account that Puerto Rico is include’ within -

the six great coasting districts of the Unite’ States

and all vessels of Puerto Rico are nationalized.2 What-

ever the political autonomy of Puerto Rico may be vis-

a-vis a state, Section 3 of its Federal Relations Act,

Public Law 600, 64 Stat. 319 (1950), requires that the

Constitution of the Commoriwealth conform with the Con-

- Stitution of the United States.

1131 Stat. 79 (1900), 48 U.S.C.A. § 744.

- 1231 Stat. 79 (1900) ; 48 U.S.C.A. 744:

The Constitution of. the United States in Article TI,

§2 grants the jurisdiction of all cases of admiralty and

maritime jurisdiction to the United States. This grant |

of power is one which is co-extensive with and must

operate uniformly in the whole United States.

Panama. R. Co. v: Johnson, 1923, 264 U.S. 375, 44

S. Ct. 391, 68 L. Ed. 748; |

Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205,

37 S. Ct. 524, 61 L. Ed. 1086;

Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149,

40 S. Ct. 438, 64 L. Ed. 834;

State of Washington v. W. C. Dawson: & Co.; 1924,

264 U.S. 219, 44 S. Ct. 302, 68 L. Ed. 646;

Romero v. International Terminal Operating Co., 1959,

358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368.

The Court below recognized this requirement for uni-

formity in the application of the Maritime law in Alcoa

Steamship Company v. Velez, 1 Cir. 1967, F.2d ___, but

_ for some inexplicable reason avoids mentioning the require-

ment in the present case, other than to state that the

Puerto Rico Workmen’s Accident Compensation Act has

‘‘within the area of its jer amas displaced the rem-

edies of the maritime law . a ;

By this sennbenseial, | an tetidlons discrimination has

_ occurred, whereby petitioner, and others similarly situ-

ated have been deprived of federal rights and the equal

protection of the laws. This holding is irreconcilable with

-* the authoritative decisions of this Court and the constitu-

tional grant of the admiralty and maritimé jurisdiction.

It is for this Court to resolve the conflict end confusion

created by the decision below. ©

B. In Decwine tHat Petitioner Was BarreD By THE

Locan Compensation Statute From Pursurine His

FreperaL Remepies For A Maritime Cua, THE Count

Has Decioep A Question or FreperaL Maritime Law

‘DimEcTLY IN ConFLICT Wir THE Decisions oF OTHER

Courts or APPEALS AND Witx Its Own Decisions.

The Court below has construed the exclusive remedy

provision of the Puerto Rico Workmen’s Accident Com-

pensation Act as intending to deprive the injured worker °

of its: federal maritime claim. It reaches this résult by

the ‘compulsion’? in its reading of the decisions of the

Supreme Court of Puerto Rico. On the other hand, peti-

tioner contends that the Supreme Court of Puerto Rico,

in its decisions* recognizes the supremacy of the federal

admiralty and*maritime law, in its sphere. The District

Court judges also found no conflict between the intent of

the legislature of Puerto Rico and the maritime law. —

The decisions of the Supreme Court of Puerto Rico

_ prohibit indemnity recovery from the complying employer

in-the absence of an express contractual relationship be-

tween‘the employer and the third party tort feasor. Never-

theless, these decisions recognize that under the maritime -

law, there exists an implied warranty of workmanlike

services. :

In other words, the Supreme Court of Puerto Rico,

like many other states, has not adopted the Ryon doctrine ;

for non-maritime torts. |

The Court of Appeals for the First. Circuit has like-

13 Inter-Island Shipping Corporation v. Jaiieiietal Commission

of Puerto Rico, Dec. .18, 1963, .:.... P.R.R. ......;-Cortijo Walker v.

Puerto Rico Water Resources Authority, Dec. 18, 1964, ...... P.R.R.

phi ; Marcano Torres v. Puerto Rico Water Resources Authority,

January 20, 1965, ...... P.R.R. ......; Unofficial translations of these

— not yet officially. published in English, are appended-

ereto.

. &

‘wise accepted the Ryan doctrine in claims over against

independent stevedoring contractors for marine claims

arising in the navigable waters of Puerto Rico.* If Ryan

and its progeny are applicable in Puerto Ricg waters,

it is because federal maritime law is supreme since the

Ryan doctrine has been rejected for non-maritime torts

- in Puerto Rico. Under the same reasoning, if the federal

maritime law is supreme, the Puerto Rico statute cannot

deprive the petitioner of his right to a seaworthy vessel.

It is, therefore, impossible to reconcile or harmonize

the decision of the Court below and its opinion in Com-

pania Transatlantica Espanola S.A. v. Melendez Torres, —

I Cir. 1966, 358 F.2d 209. mel

It is also impossible to reconcile or harmonize the opin-

ion in the instant case with the same court’s opinion in >

Alcoa Steamship Company v. Velez, 1 Cir. 1967, F.2d

. The: sole: criterion for a different result in the

Velez case is that the contract of employment was not —

entered into in Puerto Rico. Inasmuch as all Puerto

Rican vessels fly the American flag, the seamen aboard

those vessels who are hired in Puerto Rico may now be _-

divested of their rights under the Jones Act,® the law

of unseaworthiness and maintenance and cure, even though

the Puerto Rican seamen are licensed by the United States

Coast Guard, and medical facilities are available for them

in United States Public Health Clinics. - |

Although this Court has not considered the effect of

. a state workmen’s compensation act upon the Ryan doc-

14 Compania Transatlantica Espanola §.A. v. Melendez Torres,

. 1 Cir. 1966, 358 F.2d 209. . of)

15 46 U.S.C.A. 688. | .

16 In Velez, there is a partial retreat from the holding of Fonseca

v. Prann, 1 Cir. 1960, 282 F.2d 153. Fonseca has been criticized |

as being in conflict with Const. Art. III § 2, Amend. XIV §1, and

: “si Law 600.§5 (1). Note 35 St. John’s L. Rev. 324

.21

trine, the question has. been brought before the Courts

of Appeals of the Third, Fourth and Fifth Circuits. Mari-—

time workers injured ashore may pursue remedies under

their local compensation acts. However, even if the in-'

jury occurs ashore and compensation is due under the

local statute, if the Iongshoreman is actually engaged in

the service of a ship, he may be intitled to recover under .

- the federal maritime law. ~ 7 .

Gutierrez, v..Waterman Sicauihin Corp., 1963, 373

. US. 206, 83 S.Ct. 1185, 10 L. Ed. 2d 297.

The ‘issue has then arisen that, if a longshoreman re-

covers against a shipowner, may the shipowner recover

indemnity from the stevedore employer, if the employer

is. insured under a local compensation statute that re-

jects the Ryan rationale? Each Court of Appéals has

amswered ‘‘yes’’, even though it was undisputed in each

case that the state statute as interpreted by the respec-

tive state would have compelled a contrary result.

Hagans v. Ellerman & Bucknall S. 8. Co., 3 Cir., 1963,

318 F.2d 563.

American Export Lines, Inc.. v. Revel, 4 Cir. 1959,

‘+ 266 F.2d 82.

Koninklyke Nederladsche, “Ete. v. Btraciie Shipping

Co., 5 Cir. 1962, 301 F.2d 741. | :

McCross v. Ratnakar Shipping Co., D. Md. 1967, 265

F. Supp. 827. .

In each of these cases the local statute ‘‘within the area

of its applicability’? would have been interpreted differ-

ently. However, because a maritime claim was involved,

the principles of the maritime law, as announced -by this

Court, governed.

Tt is respectfully contended that there is hopeless con-

flict between the aterpentations of the local onentntiins

statutes: as they affect the maritime law as construed by

the Courts of Appeals of the: Third, Fourth and Fifth

Circuits and as decided in the’ court below. Moreover,

the decision below cannot be harmonized with other deci-

sions of the United States Court of Appeals for the First

Circuit.

This conflict should now be resolved by this Court.

C. In Decwine THAT Peririonzn Coup. Nor Pursue His

Is Rem Remepy, tHE Court or Appeals For THE

First Circurr Has Decwep A QuEsTION oF FEDERAL ©

* » Marrrme Law Dmectiy 1x Conruct Wirth THE Av-

THORITATIVE Decisions or THis Court AND OTHER

Courts OF APPEALS.

. The procedure followed in the case at bar parallels

exactly the procedure in Reed v. Steamship Yaka, 1963, 373

U.S. 410, 83 S.Ct. 1349, 10 L. Ed. 2d 448. In that case

this Court did not reach the issue of whether a ship may

ever be held liable for its unseaworthyness .where no -

personal liability could be asserted because, ‘‘In our view,

the Court of Appeals erred in holding that Pan Atlantic

could not be held personally liable for the unseaworthi-

ness of the ship which caused. petitioner’s injury.”’ 373

US. at 412, 83 S.'Ct. at 1351.

* [he rationale of the Reed decision was that the ship-

owner was personally liable for the unseaworthiness and

the issue was whether he had been exonerated from that

liability by the exclusive remedy provision of the Com-

pensation Act.. The Court concluded ‘‘that petitioner was

~ not barred by the Longshoreman’s Act from relying -on

Pan Atlantic’s liability as a shipowner for, the Yaka’s

--unseaworthiness in order to support his libel im rem -

; a

against the vessel.’? 373 U.S. at 415-416, 83 S.Ct. at

1353.7 eke.

The same question was left unresolved in Gueman ve

Pichirilo, 1962,..369 U.S. 698, 82.8. Ct. 1095, 8 L. Ed. 2d

205. By the decision of this Court in Jackson v. Lykes.

Bros. Steamship Co., Inc., it has become unimportant

whether the action is in personam or in rem, because Sec-

- tion 905 of Title 33 of the United States Code has been

-held to be no bar whatsoever. | 7

Assuming arguendo that Puerto Rico could bar the |

- action against the shipowner-employer in personam (a

_ proposition which is incompatible with the decisions of

this.Court), it is respectfully contended that Puerto Rico

could not deprive the petitioner of his admiralty remedy —

against the vessel. ‘The ship was unseaworthy and the ~

shipowner -was liable for that unseaworthiness. Even’ if

Puerto Rico could exonerate that liability, it could not

erase the maritime lien that arose the moment the peti- -

. tioner was injured as a result of that unseaworthiness.

In a long line of decisions this Court has held that -

im rem liability may be imposed even when the owner

was not liable *in personam. The personification of a

vessel is a legal fiction but the doctrine is useful and

17 Before the Supreme Court reviewed Reed, a conflict existed on

the question of whether a vessel was liable in rem, for damages

occurring during a demise if the charterer was, for some reason,

not personally liable. Aligned with the District Court in Reed v.

The Yaka, B. D. Pa? 1960, 183 F. Supp. 69, which permitted the

in. rem proceeding were Grillea v. Umted States, 2 Cir. 1956, 232

‘F.2d 919; Burns Bros. v. Central 'R.R. of New Jersey, 2 Cir.-1953,

202 F.2d 910; Leotta v. The Esparta, 8.D.N.Y. 1960, 188 F'. Supp.

168; Garcia v. The Beauregard, D.N.J. 1963, 193 F. Supp. 662.

Relied upon by the Court of Appeals for the Third Circuit in

Reed v. Steamship Yaka, 3 Cir. 1962, 307 F.2d 203, were two

decisions of the Court of Appeals for the First Circuit, Vitozt v. ©

Balboa Shipping Co., C.C.A. 1st, 1947, 163 F.2d 286 and Ruz

Pichirilo v. Maysonet Guzman, 1 Cir. 1961, 290 F.2d 812, reversed

on other grounds, Guzman v. Pichirilo, 1962, 369 U.S. 698, 82 S. Ct.

1095, 8 L. Ed. 1095. - aan

~“

logical,’® and recognized by the Supreme Conit. 1” Vessels

have been forfeited for statutory violations without priv-

ity or knowledge on the part of the owner. The Little

Charles, C.C.-Va. 1819, 26 Fed. Cases 979, Case No. 15,612.

Vessels have also been held subject to forfeiture for piracy

in the absence of privity or knowledge on the part of

the owner. The Palmyra, 1829, 25 U.S. (12 Wheat.) 1, 6

L. Ed. 531. United States v. The Malek Adhel, 1844, 43

U.S. (2 How.) 210, 11 L. Ed. 239.

Damages caused by the negligence of a compulsory pilot

“evolve upon a vessel. The China, 1869, 74 U.S. (7 Wall.),

53, TOL. Ed. 67. The vessel is also liable for collision

damage which occurs during a demise charter and in the

absence of amy. personal liability of a shipowner. The

- Barnstable, 1901, 181_U.S. 464, 21 S. Ct. 684, 45 L.Ed: 954.

- Cases cited to the contrary. deal with questions that are

either, procedural, as in Continental Grain Co. v. The

Barge FLB-585, 1960, 364 U.S. 19, 80 S. Ct. 1470, 4 L. Ed.

2d 1540, or involve interpretations of statutes that limit ©

liability as in The City of Norwich, 1886, 118 U.S. 468, 6

S. Ct. 1150, 30 L. Ed. 134; Consumers Import Co. v.. Ka-

bushiki Kaisha Kawasaki Zosenjo, 1960, 320 U.S. 249, 64

S. Ct. 15, 88 L. Ed. 30. They did not intend to destroy

the historic difference — aduniralty actions in per-

. gonam and those in rem.”

Cases relied upon’ below by the respondent involve, in _

one form or other, the doctrine of sovereign immunity.

In New York Dock Co. v. The Pozwan, 1927, 274 U.S. 117,

. 40S. Ct. 482, 71 L. Ed. 955, it was held that no liens could

attach during custodia legis. This did not prevent this

18 Holmes, The Common Law, 26-27 (1881). ;

19 Canadian Aviator, Ltd. v. United States, 1945, 324 US. 915,

65 S. Ct. 639, 89 L. Ed. 901. -

. 20 Dissenting opinion in Continental Grain: Co. V. The Barge

FBL-585, supra, 364 U.S. 19, at pp. 37-38. This distinction is pre-

served in the coe Admiralty Rules (1956).

Court from awarding recovery for services rendered under

the alternate theory’ of expenses incurred in the ‘‘ad-

ministration of justice.’’

The denial of in rem relief in The Waters Maid, 1922,

257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299, has been ex- .

plained on the ground that the personality of the vessels

had merged in the sovereign-and inasmuch ‘as the vessels

‘had been sold or returned, the sovereign was both im-

-mune from suit and incapable of passing imperfect title.”

- This case is suit generis’ and.a like situation could never

again arise because.of the enactment of the Public Vessels —

Act. 46 U.S.C.A. §§ 781-790. None of the situations in-

volved in these exceptions is applicable to the case at

bar nor, were they relied upon by the Court of Appeals.

However, the Court of Appeals did rely upon Noel v.

Isbrandtsen Company, 4 Cir. 1961, 287 F.2d 783, cert.

denied 363 U.S. 975, 81 S. Ct. 1944, 6 L. Ed. 2d 1264, and

its decision in Ruiz Pichirilo v. Maysonet Guzman, 1 Cir.

1961, 290 F.2d 812. The holding of the Noel case was

inapposite inasmuch as the vessel in that case was not

involved in navigation and no obligation of seaworthiness

could have been assumed by the shipowner. The Maysonet

Guzman case was reversed by this Court, Guzman v.

Pichirilo, 1962, 369 U.S. 698, 82 S. Ct. 1095, 8 L. Ed. 2d

205, without resolving the issue. It is urged that the ©

doctrine of Ruiz Pichirilo v. Maysonet Guzman, 1 Cir.

1961, 290 F.2d 812, continues to create confusion in the

availability of maritime remedies and should be reviewed

by this Court.

Conclusion _ |

For the foregoing reasons, it is respectfully submitted

that this Honorable Court issue a writ of certiorari ‘to

21 Gilmore & Black, The Law of Admiralty, pp. 500-507.

the United States Court of Appeals for the First Circuit -

in this cause, and that -this' Court should review and re-

verse the decision of the Court of Appeals and reinstate -

the decree of the District Court for the mane of Puerto

Rico in favor of the petitioner. :

Harvey B. Nacuman

; P. O. Box 2407

‘eat . §an Juan, Puerto Rico 00903

Counsel for Petitioner

Harvey B. NacHMAn

Stantey L. FELDSTEIN :

' Nacuan,. Feupsrern, Larrirre & SmirH

Of Counsel

Appendix A

Unitep States Court. or APPEALS

For THE First CrrcuIrT

No. 6787.

Aucoa SreamsHip Company, Inc.,

CLAIMANT, APPELLANT,

v. |

ANTERO PEREZ RopricveEz,

LIBELANT,’ APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

' FOR THE DISTRICT OF PUERTO RICO

Before Aupricu, Chief Judge,

Maris* and Corrin, Circuit Judges.

Antonio M. Bird, with whom J. Ward O’Neill, Francis X. Byrn,

Hartzell, Fernandez & Novas and H aight, Gardner, Poor & Havens

-were on brief for appellant.

Harvey B. Nachman, with whom Nachman & Feldstein was on

brief, for appellee. .

April 20, 1967 ;

Marts, ‘Clnowit Judge. The libelant, Antero Perez Rod-

riguez, employed as a longshoreman by Alcoa Steamship

Company, sustained injuries on one of Alcoa’s vessels

which it was operating in the navigable waters of the:

Commonwealth of Puerto Rico. The libelant was awarded

compensation by the State Insurance Fund under the

Puerto Rico Workmen’s Accident Compensation Act.’ He -

then brought suit in rem in the United States District Court

for the District of Puerto Rico against Alcoa’s vessel al-

* By designation.

? Act of April 18, 1935, No. 45, 11 LP.R.A. §§ 1 et seq.

leging that the respondent vessel ‘‘had breached its duty

and warranty to provide a seaworthy vessel’’ by reason

of which he was injured and he prayed for a decree

awarding him damages against the vessel. 2 Alcoa, as claim-

ant of the vessel, stipulated that the libelant was precip-

_itated in to the lower hold of the vessel from a ladder

. when the bolts of the ladder parted from the hatch wall

which caused libelant’s injuries and Alcoa agreed that :

$53,000. was the reasonable value of the damages sustained

by libelant. Accordingly the only question submitted to

the district court for its determination was whether the

libelant was barred from bringing this action by section

20 of the Puerto Rico Workmen’s Accident Compensation

Act, 11 L.P.R.A. § 21.

That section provides:

‘‘When an employer insures his workmen or em-

_ ployees in accordance with this chapter, the right

herein established to obtain compensation:shall be the

only remedy against the employer; but in case of

~ accident to, or disease or death of, the workmen or

employees not entitled.to compensation under this

‘chapter, the liability of the employer is, and shall

continue to be, the same as if this chapter did’ not

exist.”’ -

The district court held that the action was not barred

by Section 20 and entéred a judgment in favor of the

libelant for $53,000. This appeal by Alcoa followed.

On this appeal Alcoa contends that the district court

erred in not following the prior decisions ‘of this court

holding that a longshoreman sustaining injuries while un-

loading his employer’s vessel’on navigable waters within

’ the territorial limits of Puerto Rico may not maintain an

action for unseaworthiness against his employer’s vessel

2 Alcoa filed a claim of ownership, posted a bond and the vessel

; was released..

a ; 29

when his employer is covered by the Puerto Rico Work-

men’s Accident Compensation Act. We agree.

In Guerrido v. Alcoa Steamship Co., 1 Cir., 1956, 234.

_ F.2d 349, we had occasion to consider the impact of Con-

gressional enactments upon the Spanish maritime law of

. Puerto Rico and held that it was the intent of Congress,

in giving the Puerto Rico Legislature ‘legislative power

over Puerto: Rico waters, that the general rules of mari-

time law as understood in the United States should follow

the flag to Puerto Rico waters except to- the extent that

these rules were rendered locally inapplieable either be-

cause they were not designed to apply to Puerto Rico

waters or because of inconsistent Puerto Rican legislation.

The issue presented in the Guerrido case was whether a

longshoreman injured in the territorial waters of Puerto

‘Rico could sue a third party vessel owner by reason of the

unseaworthiness of ‘the vessel. We adhered. to our holding

in Lastra v. New York & Porto Rico 8.8. Co., 1 Cir. 1924,

2 F.2d 812, that the Puerto Rico Workmen’s Accident

Compensation Act applied to maritime workers. Since

section 31 of that Act, 11 L.P.R.A. § 32, recognized the

right to an action against a third party based on other

existing law, we held that in an action by the longshore-

man against the vessel owner who was not his employer

the local law was not inconsistent with the federal mari-

time law. We concluded, therefore, that the longshoreman

could maintain an action under the federal maritime law

against the ‘third party shipowner based upon the. unsea-

worthiness of the vessel.

‘In Fonseca v. Prann, 1 Cir. 1960, 282 F.2d 153, cert. den. .

365 U.S. 860, we were faced with the question whether a |

maritime worker could bring suit under the federal mari-

time law against his.employer and, in view of the exclusive

provisions of the local compensation act, we answered that

question in oe negative. .

30 - ’

In Waterman Stea eamship Corporation v. a ae 1 Cir.

1961, 290 -F.2d oy ‘179, which involved an action by a

longshoreman employed by a stevedoring company which

has been brought against a shipowner for injuries sus-

tained aboard the vessel while lying in the port of San

' Juan, we adhered to our. prior view, saying:

‘‘In the Fonseca case we held that the Puerto Rico

_ Workmen’ s Accident Compensation Act had rendered

the general maritime law of unseaworthiness inap-

plicable to Puerto Rican waters so far as suits . by

injured seamen against their employers are concerned.

In the Guerrido case, however, we had pointed out

that Puerto Rican legislation, such as the Workmen’s

Accident Compensation Act, could not’ supplant a

general rule of maritime law which Congress in the

exercise of its constitutional power has expressly

_ made applicable to Puerto Rican waters in common

with all other American waters. It was after quoting

- this caveat in the Guerrido case and in the light of it

that we said in the Fonseca case that ‘we are not

aware that Congress has ever taken action to make

the general maritime law of unseaworthiness apply

in those. waters’ [282-F.2d 153, 156-157], the state-

‘ment upon which the defendant bases its present con-

tention. We went on to point out in the Fonseca case

that if Congress should take stich affirmative action

it would have the effect of supplanting the Workmen’s.

Accident Compensation Act by-the general law of un-

seaworthiness so far as concerns the rights of seamen ~

injured in ‘Puerto Rican waters against their em-

ployers.

‘‘As we demonstrated in the GQuerrido case, the

general maritime law of unseaworthiness had become ~

applicable in Puerto Rican waters without express /

‘enactment by Congress, subject to being supplanted/

in whole or in part by Puerto Rican legislation.-.And

since Congress has not made the law of unseaworthi-

ness éxpressly applicable, to the exclusion of the

Workmen’s Accident Compensation Act, to seamen

injured in Puerto Rican waters suing their employers

we held in the Fonseca case that the Compensation

Act did have the effect of supplanting in such cases

the maritime law of unseaworthiness which is other- |

wise in force in Puerto Rican waters. We were, of

course, dealing’ only with the right claimed by the |

seaman in that case to sue his employer for damages

by reason of the unseaworthiness of the vessel upon

which he was injured in Puerto Rican waters. The

right of a seaman or longshoreman, such as the

- present plaintiff, to base a suit against another than

his employer upon the maritime law of. unseaworthi-

ness was not involved in that ‘case and our discussion ©

had no relation to it.’”” J

We adhere to the views expressed in our prior opinions

to the effect that the Puerto Rican Workmen’s Accident

. Compensation Act. has, within the area of its applica-

bility,? displaced the remedies of the maritime law, in-

cluding the Federal Longshoremen’ s Act* and provides the

sole remedy of a Puerto Rico longshoreman against. his

employer for injuries sustained in the course of his em-

ployment.© We have been referred to no’ Puerto Rico

statute or congressional enactment -which has modified our

3 As to one of ‘the limits of the area of the Act’s applicability

see the opinion of this court filed this day in Alcoa Steamship

_Company, Inc., et al. v. Ulpiano Velez, F.2d ’

q Longshoremen’ s and Harbor Workers’ Compensation Act, 33 |

U.S.C.A. §§ 901 et seq.

5 See Inter Island Shipping Corporation v. Industrial Commis-

sion of Puerto Rico, Dec. 18, 1963 P.R.R. *Cortijo Walker

' v. Puerto Rico Water Resources Authority, Dec. 18, 1964

P.R.R. ; Marcano Torres v. Puerto Rico Water Resources

Authority, Jan. 20, 1965, P.R.R: ..

32.

holding in the Guerrido case that thé local workmen’s

- compensation act supplanted the law of unseaworthiness

in respect to locally employed maritime workers. More-

over, particularly in view of the unique status of Puerto

Rico, we think that if and when Congress deems it advis-

able to extend:law to Puerto Rico which would otherwise

have been inapplicable to that Commonwealth, it will do

so in clear and explicit terms. See Royal Indemnity Co.

v. Puerto Rico Cement Corp., 1- Cir. 1944, 142 F.2d i

Defense Bases Act, 42 U.S.C.A. §§ 1651 et seq.

We conclude that the district court erred in holding that

the .present action was not barred by section 20 of the

Puerto Rico Workmen’s Accident Compensation Act.

The libelant argues, however, that the exclusive pro-

visions of section 20 of the Puerto Rico Workmen’s Acci-

dent Compensation Act, which immunizes an employer

against suit by his injured employee, must now be more

narrowly construed in the light of Reed v. The Yaka,

1963, 373 U.S. 410, -which, he asserts, upholds the right of

a longshoreman injured in the course of his employment

on a vessel to sue the owner of the: vessel for damages

‘based on the unseaworthiness of the vessel, even though

the owner of the vessel is his employer and has paid him

compensation under the Longshoremen’s and Harbor

Workers’ Compensation Act and in spite of the specific

provision of that act making it the longshoreman’s ex-

clusive remedy against his employer. We find it difficult

to determine the intended scope of the Yaka case. For

the fact is that the longshoreman’s suit in that case was

not brought against his employer but rather against the

vessel on which he was injured, which was in fact owned

by a third party, Waterman Steamship Corporation. It

was the shipowner which brought in the longshoreman’s

employer, a bareboat charterer of the vessel, as a third

party defendant alleged to be liable over to. the shipowner

under the indemnity terms of the charter. Reed v. The

Yaka, D.C. Pa. 1960, 183 F. Supp. 69, 77. It was on this.

theory, under the doctrine of Ryan Stevedoring Co. v.

Pam-Atlantic 8:8. Corp.; 1956, 350 U.S. 124, that the dis-

trict court entered the judgment in favor of the longshore-

man which the Supreme Court ultimately affirmed. .

In any event it is clear that in the present case we

need riot determine the exact scope of the Y. aka decision.

For in that case-the Supreme Court was dealing with the .

exclusive remedy provision of the federal Longshoremen’s

and Harbor Workers’ Compensation Act as to the con-

struction of which-it is the final authority. Here, however,

we are not dealing with a federal statute but rather with

a statute of the Commonwealth of Puerto Rico as to the

meaning and scope of which it is not the federal courts,

but rather the courts of Puerto Rico, which have the final

determination. .In making that determination the views

of the Supreme Court in the Faka case with respect to the

federal act might well be persuasive but would surely not

be binding upon the Puerto Rico courts.

Our examination of the decisions of the Supreme Court

of Puerto Rico under the Workmen’s Accident Compen-

sation Act compels the conclusion that the Act is intended

to and does provide the exclusive remedy against his em-

ployer for a covered employee who is injured in the course

of his employment. United Porto Rican Sugat Co, v. Dis-

trict Court, 1933, 44 P.R.R. 904; Onna v. The Texas Co.,

1945, 64 P.R.R. 497; DeJesus v. Osorio, 1946; 65 P.R.R.

‘601; Inter Island Shipping Corp. v. Industrial Commission

_ Of Puerto Rico, Dec. 18, 1963, . P.R.R. » 5 Cortijo

Walker v. Puerto Rico Water Resources Authority, Dec.

18, 1964, P.R.R. = ._:-In ‘the Inter Isalnd Shipping

Corp. case, which involved a seaman, the Supreme Court

of Puerto Rico ‘reaffirmed the exclusive character of the

84 .

Act and did not refer to the Yaka case even though the

latter had been handed down some months previously.

- We come then to the. question whether the libelant may

nonetheless maintain the libel in rem against the vessel

for unseaworthiness as if it were a third party on the

ground that it breached a warranty to bé a seaworthy

vessel. This theory was-‘rejected by our court in Ruiz

Pichirilo v. Maysonet Guzman, 1961, 290 F.2d 812, reversed

on other grounds, Guzman v. Pichirilo, 1962, 369 U.S. 698.°

We held that the ‘‘concept of a ship as an individual

‘may have an aura of romance befitting the lore of the sea,

but to regard it as an entity having separate responsi-

bilities independent of the primary legal responsibility of

some human actor has little rational appeal.”’ Nor did

we find that the doctrine of liability for unseaworthiness

_ should lead to a different result. We stated ‘‘It is true ~

that one speaks of unseaworthiness ‘of the vessel’ and of

‘liability without fault,’ but this cannot obscure the fact ©

that liability depends upon a legal obligation growing out

of a relationship. between individuals: the injured party

and the one charged with preventing the injury.’’ (290

' F.2d pp. 814-815). See also, Noel v. Isbrantsen Company,

4 Cir. 1961, 287 F.2d 783, 785-786. .

Accordingly, since, as we have shown, séction 20 of the

Puerto Rico Workmen’s Accident Compensation Act bars

a suit by the libelant against the vessel owner on the

ground of unseaworthiness, the present action in rem can-

not be maintained solely against the vessel as though ‘it

were a third party independently liable for the libelant’s

injuries. :

The decree of the district court will be reversed and the

cause remanded with directions to dismiss the libel.

' 6 This precise question was not reached by the Supreme Court

in Guzman v. Pichirilo, 1962, 369 U.S. 698, or in Reed v. Steam- -

ship Y aka, 1963, 373 U.S. 410.

Appendix B-1

Unrrep States Court or APPEALS *

For tHe First Circuir

No. 6703. -

- Atcoa Sreamsuip Company, INc., ET AL.,

PLAINTIFFS, APPELLANTS,

; Vv. ;

Uxerano Veunz, Manacer,

Puerto Rico Stare Insurance Funn,

'. DEFENDANT, APPELLEE. :

APPEAL FROM THE UNITED STATES DISTRICT COURT

_. FOR THE DISTRICT OF PUERTO RICO . °

Before Aupricu, Chief Judge,

Manis* and McEntez, Circuit Judges.

_ dose L. Novas, Nicolas Jimenez and William E. Wright, with ©

whom J. Ward O’Neill, Rodolfo Sequeira, Hartzwell, Ferndudez &

Novas, Terriberry, Rault, Carroll, Yancey & Farrell, Haight, Gard-'

ner, Poor & Havens and Rodriguez Ema & Rodriguez Ramon were

on brief, for appellants.

Peter Ortiz, Assistant Solicitor General, with whom J.-B. Fer-

nandez Badillo, Solicitor General, was on .brief, for appellee.

April 20, 1967. .

_ Maris, Circuit Judge. The question presented on this

appeal is whether the Puerto Rico Workmen’s ‘Accident

Compensation Act, 11 L.P.R.A. §§ 1 et seq., is applicable

to seamen who have been employed in the continental

- United States and who are working temporarily in the navi-

* Sitting by designation.

gable territorial waters of Puerto Rico as crew-members

of foreign’? owned vessels when they are injured.

The plaintiffs Aleoa Steamship Company, Inc., A. H. Bull —

Steamship Company, Inc., Lykes Brothers Steamship Com-

pany, Inc., and Waterman Steamship Corporafion, brought

suit in January 1962 against the Manager of the Puerta

_ Rieo. State Insurance Fynd in the United States District

Court for the District of Puerto Rico alleging that the

_.. defendant: in. July 1961 had advised each of them ‘that in

view of the decision of this court in Fonseca v. Prann, 1960,

282 -F.2d 153, he understood that all accidents suffered by

‘members of crews of vessels in the navigable waters of

Puerto Rico were covered by the Puerto Rico Workmen’s

' Accident Compensation Act and, therefore, he was serving

notice of a new classification and premium assessment with

| Tespect to seamen employed by them working in the navi-

gable waters of Puerto Rico. . 3

‘The plaintiffs refused to file payroll reports pursuant to

the Act or to pay the premiums assessed against -them,

contending that defendant had no authority to make the

demand upon them. Their refusal was based on the grounds

that the seamen involved were not residents of Puerto Rico

and .had not ‘been employed there,’ but were employed by ’

plaintiffs pursuant to federal maritime law under shipping

' articles executed .at continental United States ports, The

| plaintiffs alleged that their refusal to comply with the de-

fendant’s demands subjected ‘them to actions as uninsured

employers and to liens by successful claimants against

their property, 11 L.P.R.A. § 16, and also subjected them

to penalties for failure to insure their seamen, 11 L.P.R.A.

§ 18,.and accordingly they prayed for a judgment declar-

ing that their liability for scqdental injury or death suf- .

- 1The term “foreign” is used in the sense that these vessels. are

. owned by corporations incorporated in various States of the Union

other than Puerto Rico. ~

fered by their seamenewhile in the course of employment

within the navigable waters of Puerto Rico arises under

federal maritime law and that the local workmen’s acci-

dent compensation act does not apply.

The parties stipulated that in cases of accidental injury

to or death ofsany seaman employed by plaintiffs aboard ~

their vessels occurring within the navigable waters of

Puerto Rico the matter would be referred to the United

States Public Health Service as it would upon such an

occurrence happening in any port of the United States. It

was also stipulated that during 1965 the intervenor Sea-

~ Land Service, Inc., and the plaintiff Waterman Steamship

Corporation paid, under protest, the premiums demanded

by the defendant and filed petitions for review before the

Industrial Commission of Puerto Rico, which at the time

of trial were still pending.

The District Court construed our statement in Fonseca

v. Prann, 282 F.2d 153, 157, that the ‘‘Congress intended to

clothe the Government of Puerto Rico with power to pro--

vide for the application of its workmen’s compensation

act to injuries suffered by employees on local navigable

waters’’ to include maritime workers coming from ports

outside Puerto Rico aboard vessels belonging to owners

outside Puerto Rico. The Court concluded that, since that

power was delegated by Congress to Puerto Rico, the only

remaining question was whether the Puerto Rico Legisla-

ture intended to iticlude such foreign seamen within: the

coverage of the compensation act and that this question

could adequately be resolved under the procedure provided

by the Puerto Rico Workmen’s Accident Compensation Act.

Accordingly, the district court withheld consideration of

the merits and dismissed the complaint. This appeal by

__, the plaintiff followed.

The plaintiffs contend that the district court abused its

discretion in dismissing the couwplaint. It is argued that

our holding in Fonseca v. Prann does not support the

broad interpretation given that case by the defendant and

by the district court. We agree. |

In Fonseca v. Prann the sole question for consideration

was whether a Puerto Rico seaman could sue his employer,

who was insured under the Puerto: Rico Workmen’s Acci-

dent Compensation Act, for negligence under the Jones Act

and for unseaworthiness under the general maritime law

to recover for injuries sustained while at work within the

_ territorial limits. of Puerto Rico. We held that Section 20

of the Act, 11 L.P:R.A. § 21, barred such an action. In that

case we had no occasion to. deal with seamen who had been

employed outside the jurisdiction of Puerto Rico to work

on vessels owned by non-resident employers and whose

only contact with Puerto Rico was when their vessel entered

the waters of Puerto Rico for a temporary visit in the

course of its voyage. As we pointed out in Guerrido v.

Alcoa Steamship Co., 1 Cir. 1956, 234 F.2d 349, and in

. Waterman Steamship Corporation v. Rodriguez, 1 Cir. 1961,

290 F.2d 175, 179, Puerto Rican legislation, such as the

Puerto Rico Workmen’s Accident Compensation Act, could

not supplant a general rule of maritime law which Congress

‘ in the exercise. of its zonstitutional power had expressly

made applicable to Puerto Rican waters in common with

all other American waters.

. But what we had said in the Fonseca case was-not in,

tended to mean that the Congress had delegated to the

Legislature of Puerto Rico power in the general field of

admiralty and maritime law to apply its local compensation

‘act to seamen who are actually employed under federal

maritime laws and to require foreign vessel owners who are

responsible to their maritime workers under those laws for

accidental injury or death, or who have provided them

with compensation for those casualties, to insure these

-_ workers also under the Tocal Puerto Rico | statute. Indeed,

the delegation of such power would radically change the -

characteristic feature of the general maritime law that it

follows the flag of the vessel? and would seriously interfere

with the proper uniform application of that law in its

international and interstate relations. Southern P. Co. v.

Jensen, 1917, 244 U.S. 205; Knickerbocker Ice Co. v. Stew-

art, 1920, 253 U.S. 149; Washington v. Dawson & Co., 1924,

264 U.S. 219. 7 Ss .

In Alcoa v. Perez Rodriguez, filed this day, F.2d ,.

which involved a Puerto Rican maritime worker compen-

sated for injuries under the provisions of the Puerto Rico

Workmen’s Accident Compensation Act, we adhere to our

prior view to the effect that the Puerto Rico statute has,

within the area of its applicability, displaced the remedies.

of the maritime law and provided the sole remedy of a

Puerto Rican longshoreman against his insured employer

for injuries sustained in the course of his employment.

But this is the extent to which the Legislature of Puerto

Rico is empowered to supersede the rules of the general

maritime law in Puerto Rico waters. And, furthermore, we

think that this is in conformity with the spirit of the Puerto

Rico Workmen’s Accident Compensation Act. By the Act

of May 16, 1958, No. 16, p. 19, the Legislature enacted an —

exemption as to technical personnel protected by laws of

other jurisdictions. 11 L.P.R.A. § 28a. In the statement

of motives, inter alia, appearing in the Act appears the

following: 7 :

. «By express provision of the workmen’s accident

compensation statutes, or by judicial order, the laws

‘in the continent generally have extraterritorial effect,

so that when workmen are hired in the various states,

they are subject to the Workmen’s Compensation Act

of the State where they are hired. We are facing the:

2 Lauritzen v. Larsen, 1953, 345 U.S. 571, 584-585; Guerrido v. -

Alcoa Steamship Co., 1 Cir., 1956, 234 F.2d 349, 354. :

ee <n.

same situation as regards the employment of technical

personnel imported from the United States of

America. | 7

‘Since our statyte establishes compulsory insur-

ance, the firms employing such technical personnel

- would be bound to maintain double insurance in con-

nection therewith. |

“It is convenient to industry in general, and to the

employers affected, that a reasonable standard be

established to prevent duplication in the payment of

such premiums.’ [See note, 11 L.P.R.A. § 28a.]

Here is clearly expressed intention by the Legislature |

of Puerto Rico that its Workmen’s Accident Compensation

Act shall not be used as a vehicle to require the mainte-_

nance of duplicating compensation insurance by an em-

ployer. | | sete

Moreover, the Supreme Court of Puerto Rico has itself

applied the generally accepted law. of the flag by construing

the Puerto Rico Workmen’s Accident Compensation Act

to cover injuries to Puerto Rican maritime workers occur-

ring in waters away from Puerto Rico. Inter. Island Ship-

ping Corporation v. Industrial Commission of Puerto Rico,

Dee. 18, 1963, P.R.R. ~ . In that case the contract

with the maritime worker had been negotiated in Puerto

' Rico and the ship belonged to a corporation organized

‘ under the laws of Puerto Rico. The Court held that the

injury, although it occurred outside of Puerto Rican waters,

was insured under. the local accident ‘compensation act,

stating :- ae sei gigs eens |

‘ “The Industrial Commission in declaring itself with-

out jurisdiciton in this case, applied the criterion that.

* our Workmen ’s Accident Compensation Act does not

cover an accident occurred outside our territorial

limits. The fact that the employer in this case paid

premiums also computed on the wages paid to the

employer’s maritime crew when it worked outside of

Puerto Rico is not argued. The power of the Legis-

lature of Puerto Rico to provide medical assistance

and hospitalization to our migrating laborers who are

injured outside of Puerto Rico if they return to our

- country, Act. No. 77 of June 23, 1958 is not argued.

There is evidence that the benefits of our workmen’s

- compensation has been extended to some of our offi-

cials called to work outside of Puerto Rico for acci-

dents suffered outside our territory. The concept of |

‘extraterritoriality’ carries impliedly with it the in- :

vasion of the juridicial sovereignty of another state,

city or political body. When said invasion is not pro-

duced, it can hardly. be considered that the application

of a law has been given extraterritorial effect.’’

We conclude that the Puerto Rico Workmen’s Accident

Compensation Act cannot: be applied to seamen injured in

Puerto Rican waters. on. an American vessel owned by a

corporation of a state other than Puerto Rico where the

contract of employment was not-entered into in Puerto .

Rico. Such seamen’s rights under the Jones Act, the mari-. °

time law of unseaworthiness, and maintenance and cure

attach upon their employment and follow them into Puerto

Rican waters. |

The judgment of the district court will be reversed and

the case will be remanded to the district court for further

proceedings not inconsistent with this opinion.

Pole Appendix B-2

In tHE Supreme Court or Puerto Rico

CI-63-7 Review

Inter IsLanp’ Suipprinc CorPoRATION,

Appellant,

ee he

InpustRiaL Commission oF Puerto Rico,

. Appellee.

Division composed of Mr. Justice Belaval, as Chief Judge

of Division, Mr. Justice Hernandez Matos and Mr.

. Justice Santana Becerra. :

Mr. Jusrice Benavat delivered the opinion of the Court.

San Juan, Puerto Rico, December 18,1963

The Inter Island Shipping’ Corporation, a corporation

organized under the laws of Puerto Rico, with its main

office in Puerto Rico, executed a contract of work in Puerto

Rico with Roque Rosado Claudio, residing in Puerto Rico,

by virtue of which Rosado Claudio would work as seaman —

on board the ship ‘‘TMT Lloyd’’ in trips from the port of

San Juan, Puerto Rico to St. Thomas and St. Croix, Virgin

Islands, returning to San Juan port, each of said trips

having: a duration of twenty-four to twenty-six hours, and

‘making an average of two trips a week. mf

Appellant obtained from the State Insurance Fund a

. labor accident policy on the basis of the total amount of its

_ payroll which included, not only the wages earned by his

| . Mnarine workers and employees in the work done inside the .

island of Puerto Rico, but also the work done outside the

territorial limits of Puerto Rico during said trips.

On September 1, 1962 seaman Roque Rosado Claudio

| suffered an accident while the ship ‘‘TMT Lloyd’’ was an- —

- chored in waters of St. Thomas, Virgin Islands. On Sep-

tember 6, 1962, appellant: filed a labor accident report with

the State Insurance Fund of Puerto Rico. On.October 31,

1962 the Manager of the State Insurance Fund decided

that it lacked jurisdiction to entertain the case because the —

accident occurred outside the territorial limits of the Com-

monwealth of. Puerto Rieo. Appellant appealed from the

decision to the Industrial Commission which rendered a

decision dismissing the petition and affirming the decision

of the State Insurance Fund. In the latter decision the

point was also sustained. that the employer was not en-

titled to appeal from the decision of the Manager, because

said employer had not been declared uninsured by the

Manager. Reconsideration was requested and denied.

On review. in this Court, appellant assigns three errors:

(1) that the labor accident involved in the present case

was not covered by employer’s policy; (2) that our Work-

men’s Accident Compensation Act is not.effective extra-

territorially to cover an accident which occurred to a la-

borer while he is in the scope of his employment outside

the territorial limits of Puerto Rico for an employer in-

sured with the State Insurance Fund; (3) that employer

is not entitled to appeal to the Industrial Commission from .

a decision of the Manager of the State Insurance Fund in

which said official refuses to include under. the employer’s

. policy a labor accident occurred to said employer’s worker.

1-2- The power of the Legislature of Puerto Rico to

establish a workmen’s accident compensation system when

.the accident occurs in the maritime zone of Puerto Rico

and adjacent waters merits some history. After the cession

of the province of Puerto Rico by the government of Spain

to the government of the United States on April 11, 1899,

the Congress of the United States adopted the Organic Act

of 1900 approved on April 12, 1900, to govern in the island

of Puerto Rico, § 9 of which provided: ‘‘That the Com-

missioner of Navigation shall make such regulations, sub-

44 © *

ject to the approval of the Secretary of the Treasury, as

he may deem expedient for the nationalization of all vessels

owned by the inhabitants of Puerto Rico on the eleventh

day of April, eighteen hundred and ninety-nine, and which .

continued to be so owned up to the date of such nationali-

zation, and for the admission of.the same to all the bene-

fits of the coasting trade of the United States; and the

coasting trade between Puerto Rico and the United States

-hall be regulated in accordance with the provisions of law

‘pplicable to such trade between any two great coasting

districts of the United States.’’ ‘

To carry out the policy stated by the Congress’ of the

United States-in § 9, on May 12, 1906 the amendment to

§ 4348-of the Revised Statutes of the United States was

adopted. It provides: ‘‘The seacoasts and navigable rivers

of the United States and Puerto Rico shall be divided into’

five great districts: The first to include all the collection

districts on the seacoasts and navigable rivers between the

northern boundary of the State of Maine and the southern -

‘boundary of the State of Texas; the second to consist of

the island of Puerto Rico; the third to include the collec-

tion districts on the seacoasts and navigable rivers between

the southern boundary of the State of California and the

northern boundary of the State of Washington ; ‘the fourth

to consist of the Territory of Alaska; the fifth to .cénsist

of the Territory of Hawaii.’”’ ~

Section 13 of the Organic Act of 1900 thee provided: |

“That . all property which may have ‘een acquired in

Puerto Rico by the United “States under the cession of

Spain in said treaty of peace in any public bridges, road

. houses, water powers, highways, unnavigable streams, and

the beds thereof, subterranean waters, mines, or minerals

under the surface of private lands, and all property which

at the time of the cession belonged, under the laws of Spain

then in force, to the various harbor-works of Puerto Rico,

and all the harbor shores, docks, slips, and-reclaimed lands,

but not including harbor areas or navigable waters, is

hereby placed under the contrél of the Government ‘estab-

lished by this Act to be administered for the benefit of the

eople of Puerto Rico; and the Legislative Assembly —

hereby created shall have authority, subject to the limi-

tations imposed upon all its acts to legislate with oper

to all such matters as it may deem advisable.’’

When the Organic Act of 1917 was enacted, § 13 of the

Organic Act of 1900 was substituted by §§ 7 and 8 of the

new Act which provide: ‘‘That all property which may

have been acquired in Puerto Rico by the United States

under the cession of Spain in the treatygof peace entered

into on the tenth day of December, eighgeen hundred and

ninety-eight, in any public bridges, road houses, water

powers, highways, unnavigable streams and the beds

thereof, subterranean waters, mines or minerals under the

surface of private lands, all property which at the time of

the cession belonged, under the laws of Spain then in force,

to the various harbor works boards of Puerto Rico, all the

harbor shores, docks, slips, reclaimed: lands, and all public

at lands and buildings not. heretofore reserved by the United

States for public purposes, is hereby placed under the con- -

trol of the Government of Puerto Rico, to be administered

for the benefit of the People of Puerto Rico; and the

Legislature of Puerto Rico shall have authority, subject

‘to the limitations imposed upon all its acts, to legislate

with respect to all such matters as it may deem advisable.

Provided, That the President may from time to time, in

his discretion, convey to The People of Puerto ‘Rico such

| lands, buildings, or interests in lands or other property

now owned by the United States and within the térritorial

limits of Puerto Rico as in his opinion are no longer needed

for purposes of the United States. And he may from time

to time accept by legislative grant from Puerto Rico any

ER ALE ORI ateitaatats

- -

wn ' 46

lands, buildings, or other interests or property which may

be needed for public purposes by the United States.” (§ 7) °

‘‘That the harbor areas and navigable streams and

bodies of water and submerged land underlying the same -

in and around the Island of Puerto Rico and the adjacent

islands and waters, now owned by the United States and

» not reserved by the United States for public purposes be,

and the same are hereby, placed under fhe control of the

Government of Puerto Rico, to be administered in the same

manner and subject to the same limitations as the prop-

erty enumerated in the preceding section: Provided, That

all laws of the United States for the protection and im-

provement of the navigable waters of the United States

_ and the preservation of the interests of navigation and

commerce, except so far as the same may be ‘locally in-

- applicable, shall apply to said Island and waters and to its

adjacent islands and waters: Provided, further, that noth-

ing in this. Act contained ‘shall be construed so as to affect.

or impair in any manner thé terms or conditions of any-

authorizations, permits,.or other powers heretofore law-

fully granted or exercised in or in respect of said waters

and submerged land in and surrounding said Island and its

adjacent islands by the Secretary of War or other author- —

ized officer or agent of the United States; And provided,

further, That the Act of Congress approved June eleventh

nineteen hundred and six, entitled ‘An. Act to empower

the Seéretary of War, under -certain restrictions, to au-

thorize the construction, extension, and maintenance. of

‘wharves, piers, and other structures on lands underlying

harbor areas in navigable streams and bodies of water in

or surrounding Puerto Rico and the islands adjacent

thereto,’ and all other laws and parts ‘of laws in conflict

with ‘this section be, and the same are hereby, repealed.’’

AS 8) As may be seen, the power of the Legislative As-

sembly of Puerto Rico to establish a workmen’s accident

compensation system in the maritime zone stems from § 8

of the Organic Act of 1917 and left in force by the Federal |

Relations Act of 1950. As the state of law which stems

from the possible collision between the federal laws of ad-

miralty and maritime compensation and our Workmen’s —

Accident Compensation Act requires a review of the fed-

eral legislation and the case law applicable, we shall try a

brief synthesis of said institution. :

The power. of the Congress of the United States to estab-

lish a compensation system for maritime’ damages flows

from § 2 of Art. III ofthe Constitution of the United

States of America, which provides: ‘‘The judicial power.

shall extend to all cases . . . of admiralty and maritime

jurisdiction’’ in accordance with ¢ 8 of Art. I of said Con-

stitution; which provides: ‘‘The Congress shall have Power

..- To make all Laws which shall be necessary and proper

for carrying into Exeéution . . . all other Powers vested

by this Constitution i the Government of the United

States, or in any Department or Officer thereof.”’

' . By virtue of said power, Congress enacted, on April 22,

1908, the Federal Employers’ Liability Act which specifi- ~

cally referred to public carriers engaged in interstate com-

merce by railroad, the cdnstitutionality of which was sus-

tained. It was endeavored to apply said law to maritime

workers and the Supreme Court did not permit it. On March

4, 1915 the Jones Act was enacted, granting to seamen a

cause of ‘action similar to that granted to railroad em-

ployees, and its cénstitutionality was sustained.

’ Notwithstanding that the provisions of the Constitution

of the United States which we have quoted, granted Con-

gress jurisdiction over all matters related to admiralty and

maritime compensation, some states fried to adopt mari-

time labor compensation laws. An Act of 1914 of the State

of New York produced the first important decifion of the

Supreme Court of the United States on the present case:

"48

}

Southern Pacific Kennan v. Jensen, 244'U. S. 205, 61 L. Ea.

" 1086 (McReynolds, 1917) 215 U.S. 1098 L. Ed. The case

‘of Jensen established the rule that- any state legislation

on maritime compensation would contravene the essential

. purpose of-the Constitution to maintain within the proper

harmony and uniformity all maritime legislation, refer-

ring to international as well as to interstate relations. In

view of said decision Congress decided to amend § 9 of the

Judiciary Act of United States of.1789 by adding to the

saving to.suitors clause as to common-law remedies the

remedies under the workmen’s compensation laws of any

state. Said amendment by addition was held unconstitu-

- tional in the case of Knickerbocker Ice Co. v. Stewart, 253

U.S. 149, 160-166 64 L. Ed. 839-841 (McReynolds* 1920)..

The case of Knickerbocker established the rule that al-

though 4 9 of the Judicial Code had granted to the- United —

States district courts cognizance of all civil causes of ad-

miralty and maritime jurisdiction, Congress had exceeded

its authority in sanctioning actions by the states under.

their Workmen’s Compensation Laws for employees en-

gaged in maritime work because Congress could not trans-

fer its legislative power to the wale ‘because by nature

- this is non-delegable. —

Once more Congress intended,’ in 1922, to legalize the

state maritime compensation by making an addition to the

saving clause and also saving to claimants for compensa-

tion “‘for injuries to or death of persons other than. the

master or-members of the crew of a vessel their rights and

remedies under ‘the workmen’ s compensation law of any

State’. Said amendment by addition was held unconstitu- _

tional in the case of State of Washington v. W. C. Dawson |

and Company, 264 U.S. 219, 225-227; 68 L. Ed. 646, 651-653

- (McReynolds' 1924). In the case of Dawson the Supreme

Court tried to untie the gordian knot, observing: ‘‘With-’ -

out doubt Congress has power to alter, amend or revise

49 | 3

| \

the dnsittens law by statutes of general: - application em: —

bodying its will and judgment. This power, we think, would

permit .enactment of a general employers’ liability law or

_ general provisions for compensating injured e loyees ;

but it may not be delegated to the several States. grant:

of admiralty and maritime jurisdiction looks to-unifo ity;

otherwise wide discretion is left to Congress.”? From this |

judicial note stemmed the Longshoremen’ s and Harbor

Workers’ Compensation 0 enacted by the Congress of

the United States in 1927. . aE

So that, in the mosaic of the federal laws applicable: to

to maritime compensation which may have some relation to

us we must emphasize the Jones Act of 1915 and the Long-

-. shoreman’s ‘and Harbor. Worker’s Compensation Act of

1927. A study of the different laws applicable to other

risks or maritime or quasi maritime injuries, passengers,

visitors, etc., is made in Morris, Maritime Personal In-

‘ juries (Baker Voorhis & Co., Inc., 1959 ed.).- The moderate

application, we have made. up to now of the historic-

evolutive method is for the purpose of placing in the right

atmosphere the judicial rules applicable to Puerto —

which we shall specify below: ~

The first case which acknowledges the. power of the

Legislative Assembly of Puerto Rico pursuant to the Or-

ganic Act’of 1917 to adopt a workmen’s compensation sys-

tem ‘in our maritime zone is the case of Lastra et al. v. New

York & Porto Rico S.S. Co., 2 F.2d 812, 813-814 (Anderson

. - 1924). In said case the following pronouncements are

made: (1) that Puerto Rico, not having been incorporated .

into the United States, the Constitution of the United .

States of America does not apply in Puerto Rico by its

own virtue—ex propio vigore; (2) that Congress having

failed to provide expressly that the admiralty provisions

of the Constitution of the United States shall extend to

Puerto Rico, said provisions do not extend to Puerto Rico

. in the same manner.as the uniform provisions in.§ 8 of

Act I of the Constitution of the United States relating to

taxes, duties, imports and excises, citing the case of Downes

v. Bidwell, 182 U.S. 244, 45 L. 2d 1088 (Brown, 1901) ; (3)

that §§ 7 and 8 of the Organic Act of 1917 grant the

Puerto Rican Legislature a’ general local legislative power

over the navigable waters of Puerto Rico; (4) that the fact

that in Puerto Rico a District Court of the United States

has been established to govern over cases-of admiralty and

,maritime jurisdiction, does not import that the Congress: :

of the United States has extended to Puerto Rico the sub--

stantive rights and remedies of the provisions on admiralty.

and maritime jurisdiction contained in the Constitution of

the United States, and that two contemporary facts, such

as the amendments by addition to the Judicial Code of.

1789, previously analyzed, show the intent of Congress in

sustaining state legislation on workmen’s compensation in

the maritime zone.

In relation to the development of the doctrine of the

effectiveness or non-effectiveness of the Constitution of

‘the United States in Puerto Rico, see: ¢ 2 of the Federal

Relations Act of 1950 as to subdivision 1 of § 2 of Art. IV -

of the Constitution of the United States in relation to the

rights, privileges and immunities of the citizens of the

United States in Puerto Rico ;-Mora v. Mejfas, 206 F.2d 377,

882, 386-388 (Magruder 1953) referred to the clause of the

due process of law; Figueroa v. People of Puerto Rico, 232.

F.2d 615, 619 (Magruder 1956) referred to the clause of the

due process of law; see also, as to this last matter, Balzac

v. Porto Rico, 258 U.S. 298, 312-313, 66 L.ed.: 627, 634

(Taft 1922); Detres v. Lions Building Corporation, 234

F.2d 596, 600 (Swaim 1956) referring to the diversity of

citizenship of the citizens of Puerto Rico within the mean-

ing of said diversity clause of the federal onde of civil

procedure.

Under the authority of the case of Lastra this Court de-

cided the case of United Porto Rican Sugar Co. v. District

Court, 44 P.R.R. 904, 906-907 (Wolf 1933) by which com. -

pensation was granted to a seaman who died in his em-

ployers tug not far from the port of Humacao. This Court .

refused to apply the Jones Act and applied our Workmen’s

Accident Compensation Act following the reasoning in the

- ease of Lastra, . eo ae

. The second decision rendered by the Court\of Appeals

First Cireuit, Guerrido v. Alcoa Steamship Co., 234 F.2d:

349, 352-355 (Maris 1956) in the case of a longshoreman

contracted by a stevedoring company, of which defendant

Aleoa Steamship Company came to be a mere charterer,

some of the pronouncements of the case of Lastra were

substantially modified, but the power of the Legislative

Assembly of Puerto Rico to adopt a system of workmen’s

compensation in our maritime zone was sustained. In the |

case of Guerrido it is stated that: (1) since Puerto Rico is

neither a state of the union nor a territory which has been

- incorporated into the union preliminary to statehood it is

true that all the provisions of the Federal Constitution are

not necessarily in force, but under the same Constitution

the Congress of the United States had power to extend to

Puerto Rico, through. the Organic Act of Puerto Rico of

1900 the maritime”law in force in ‘the United States; that

Puerto Rico haying been- included in the Act of 1906 in the

six great districts of domestic shipping laws the intention

of Congress to preserve a uniform maritime law for all the

_ States as well as the incorporated territories andthe terri-

tories not destined for incorporation is evident; (2) the

Organic Act of 1900, in retaining under the jurisdiction of

the United States the navigable waters of Puerto Rico, as -

a matter of fact, established that the general rules of mari-

time law as understood in the United States followed the

' flag to Puerto Rican waters; (3) that although §§ 7 and 8

of the Organic Act of 1917 wad placed the navigable waters

of Puerto Rico under the jurisdiction of the Legislature of

Puerto Rico, said power must be construed in accordance

to the former legal’ status created by the Congress of the |

_ United States, it being proper to, condlude: “that the rulgs-

of the admiralty and maritime law of the United States

are presently in force in the navigable waters of the United

States in and around the island of Puerto Rico to the ex-

tent that: they are not locally inapplicable either’ because

they were not designed to apply to Puerto Rican waters or

because they ‘have been rendered stn care to these

the Workmen’ s Accident Compensation Act of the Com-

monwealth of Puerto Rico covers maritime workers except

to the extent that it may have been superseded as to any

class of maritime workers by compensation: legislation

passed by Congress and: intended to be applied to all

: navigable waters of the United States.

In the third decision rendered by the United States Court

of Appeals for the First Cireuit, Fonseca v. Prann, 282 F.2d

153, 155-157 (Woodbury. 1960) in the case of some seamen-

crew members of a ship property of the employer who con-

tracted them, some of the pronouncements of the.case of

_Guerrido were if not modified, at least, duly explained.

Let us see: That ‘‘whatever the actual status of the Com-

monwealth of Puerto Rico may be in all its details, its

present status is certainly not that of a State of the United

States. Nor is it even that of a territory incorporated into

the union preparatory to statehood ... As such the Gov-

. ernment of Puerto Rico has such powers as Congress from

time to time has seen fit to give it... the broad power of

Congress under Article IV, 43, [Constitution of the United

_ States of America] to legislate for national territory is

limited under the doctrinal territory is limited under the

doctrine of the Insular Cases, so-called, only by funda-

a ee ae

mental constitutional principles. ’’ (as we have seen, to

violations of the due process of law) ; that no basic princi--

ple ‘of the Constitution prevents Congress from. giving

Puerto Rico jurisdiction over its own waters; (2) that

pursuant to the conclusion reached in the case of LTastra, .

followed in the case of Guerrido, §§-7, 8 and 37 of the -

Organic Act of-1917; which are still in force and for a part «

of the Puerto Rican Federal Relations Act give the Legis-

lature of Puerto Rico general legislative power over the

__ waters of Puerto Rico; (3) that although it is certainly

true that neither the Jones Act nor the general maritime

law on injuries -related to unseaworthiness; Longshore-

men’s and Harbor Workers’ Compensation Act of 1927, :

are inherently inapplicable in Puerto Rico, there is noth-

ing in said laws specifically making its provisions applic-

able to Puerto Rico, for which the principle in the cases of

_Lastra and Guerrido that the Legislature of Puerto Rico

~ is empowered to enact ‘legislation inconsistent’ with the

Jones Act and the general maritime law afore described

should be followed; (4) that the. Legislative Assembly of

‘ Puerto Rico has exercised said power in enacting the Work-

men’s Accident Compensation Act. Bs ;

The doctrine laid down in the Fonseca case has the ad-

ditional authority that the writ.of certiorari requesting its

review was denied by the Supreme Court; Fermin Fonseca —

Flores v. Robert R. Prann, 365 U.S. 860, 5 L.ed. 2D 822.

In the fourth decision rendered by the Court of Ap- -

peals for the First Circuit, Waterman Steamship Corpora- ¥

tion v. Rodriguez, 290 F.2d 175, 179-180 (Maris 1961), the

case of a longshoreman contracted by a stevedoring com-

pany to unload cargo from an unseaworthy vessel which

did not belong to his employer, the following. ratification

and explanations: and in relation to the afore-mentioned

cases were made (1) that,’as it was held in the case of Guer.

_ vido, ‘‘The rules of the admiralty and maritime law of the ‘

United States are. ‘presently in haan in a the waiviasitite waters

of the United “States in and around: the island. of Puerto

~ Rico to the extent that they are not locally ‘ inapplicable

either because they were not designed to apply to Puerto

Rican waters or because they have béen rendered inappli-’

cable to these waters by inconsistent Puerto Rican legisla-

‘tion’’; (2) that as it was held in the Fonseca case, the

‘ Workmen’s Accident Compénsation Act of Puerto Rico |

has rendered the general maritime law of unseaworthiness —

inapplicable to Puerto Rican waters so far as concerns”

_ suits by injured seamen against their employers; (3) that

as it was held in the Guerrido ease, the general maritime

law of the United States of unseaworthiness has been appli-

cable to Puerto Rican waters without the express provi-

sion of Congress on this matter, but subject. to be° super-

seded as a whole or in part by Puerto Rican legislation,

As may be seen, the decision of the Couft of Appeal for -

the First Circuit seems to be that although the: Organic Act

“of 1917 granted ‘the government of Puerto Rico. jurisdic-

tion over its navigable waters, in the absence of Puerto

Rican legislation to that effect, the rules of admiralty and

the general maritime law of the United States are at pre-

sent in force in Puerto Rico until superseded by any incon-

sistent Puerto Rican legislation, as our Workmen’s Ac-

cident Compensation Act, because the ‘‘empty space’’ is

-eovered: by the: provions_ provisions * the nee Act

of 1900.

Anyway, because of the deference due to the decisions of

-the Court of Appeals for the First Circuit, we shall try to

decide whether this case should fall within the rules of ad-

miralty. There being an obvious difference between ‘mari-

. time tort and a tort without implied fault as the one pro-

duced by a labor accident, it is unquestionable that the ,

rule of admiralty which would bind us to contrast the law

" of the place where the offense occurred, —lex loci delicit

OME ELI GYE POLIS LEN SLL ES TIE SREP SEL AEN

bagi epee pink ae

- commissi— with the law in our forum, would not be ap- .

plicable in this case. The facts show that the laborer who

suffered the accident went ashore to’ buy some personal ar- As

ticles and when returning to the ship he fell on the gang-

plank. There is no issue whatsoever as to the place where

the contract is signed —lex loci contractus— because the ~ .

liability of the policy tries to be effective in the place of

issuance. As to the nationality of the owner of the owner —

of the ship, there-is no doubt that the ship belongs to a |

corporaiton organized under the laws of Puerto Rico. As |

to the flag state, although the ship, was of Panamanian re-

gistry, we would not feel bound to apply any provision of

the Panamanian law on this particular, It seems Panama -

has a law which makes compulsory the submission to the

‘Panamanian forum in all claims against the owner of the

“ship. As the Panamanian legislation favors the ship owner

over the laborer many ship owners try to obtain their Te-

gistration in Panama, The Supreme Court of the United

States has refused to acknowledge said supremacy of the

Panamanian law against the more favorable compensa-

tions of the North American ‘states: Lauritzen v. Lar-

sem, 345 U.S, 571, 590, 97 L.ed. 1254, 1272 (Jackson 1953), «:

_ besides, this case does not deal with the claim of a sea-

man against the owner of thé ship. Since it concerns an

accident which occurred in the port of St. Thomas, we

should not consider either the inaccessibility of. the foreign

forum which sometimes seeks its best solution in the courts

of admiralty. As a question of reality, if we had to apply —

some of the patrimonial ‘‘maritime uses’ of the island

of Puerto Rico, recognized as they are by the admiralty

law itself, the sea that separates our island from the Vir-

gin Islands, has always been considered a ‘‘Puerto Rican .

lake’’; in relation to the lex forum it is not a matter of

_ applying the law of the Virgin Islands —an unincorporated -

' territory— to a quasi judicial organism of Puerto Rico, or

vice versa, nor of deciding which of the two laws, in being

. more favorable, could better help to create an atmosphere -

forebéarance which the maritimé countries Ary to foster to

avoid retaliation against their own crews.

As to whether the Jones Act or the Longshoremen 's and.

Harbor Worker’s Compensation Act of 1927 of the Con-

_ gress of the United States are applicable, the ruling in. the

_ ease of Fonseca vy. Pramn, supra, which we shall apply as

our local rule in this case, convinces us that said laws

would not be applicable in view of our Workmen’ s Ac-

cident Compensation Act.

_ We have reached the concluson that in a case like this, _s

a simple case of coverage within a labor policy, we must’

adopt the practical criterion followed ‘by the Supreme

Court of the United States in the. eases of Cudahy Pack-

ing Co. v. Parramore, 263 U.S. 418, 423-424, 68 L.ed. 366,

369 (Sutherland 1923) and Bradford Electric Light. Co. v.

Clapper, 286 U.S. 145, 157-158, 76 L.ed. 1026, 1034 (Bran-

deis 1932), and decide that this case deals with a single

labor-management relationship and said relationship ,

creates a definite status which is not altered by -the fact

that the aecident occurred outside the territorial limits,

and which eeuld have been recognized by the State where

the labor relationship was created. The case in which a

- . state compensates an accident occurred in another ‘state

or nation is not as unusual as it seems—Biggs v. Theis,

369 P.2d 32, 35 (Castles 1942). In the case of Saunders,

136 A. 722, 723 (Wilson 4927 ), a laborer employed i in Maine .

and covered by the labor compensation law of said state, —

_was. compensated for an accident he suffered in Canada,

where he went to work by orders of his employer. The

- ease of Saunders has been cited with approval in the case

- . lamore'.v. Groneweg & Schoentgen Co., 257 N.W. 561

«4

(Stevens 1934) ; Hilding v. Department of Leb and In-~

dustries, 298 P. 321, 323 (Beeler 1931); In re. Bume, 86

P.2d 1095, 1098 (Riner 1939)...

The Industrial Commission in dedlaring itself without |

jurisdiction in ‘this case, applied the criterion that our

Workmen’s Accident Compensation | Act does not cover

an accident occurred outside our terri orial limits. The fact

that the employer in this case paid premiums also com,

puted on the wages paid to the employer’ 8 maritime crew

when it worked outside of. Puerto Rico i is not argued. The

power of the Legislature of Puerto Rico to provide medi-

| _ eal assistance. and hospitalization to our. migrating lab-

orers who are injured outside of Puerto Rico if they re-

' turn to our country, Act. No. 77 of June 23, 1958 is not

argued. There is evidence that. the benefits of our work--

_ men’s. compensation has been extended to some of our

officials called-to work outside of Puerto Rico for acci-

dents suffered outside our territory. The concept of ‘‘ex-

traterritoriality’’ carries impliedly with it the invasion

of the juridical sovereignty of another state, city or politi-

cal body. “When said invasion is not produced, , it , can

hardly be considered that the application of a law has

been given extraterritorial effect. :

We agree with the statement of the petitioner that the

fact that the Manager of the State Insurance Fund declared

petitioner an uninsured employer.

The decision of the Industrial Commission will be: re-

versed. °

Appendix B-3

In tHe Supreme Court or Puerto Rico

Jui, Paso et al., surnamed

Plaintiffs

Vv.

_ Puerto Rico Water Resources AuTHORITY,

Defendant and Third-Party Plaintiff-Appellant,. .

_ Awastacto RopricvEz CuBANo, |

Third-Party Defendant-A ppellee

_ Division composed of Mr. Justice Belaval, as Chief Judge .

.. of Division, Mr. Justice Hernandez Matos and Mr. Jus-"

tice Santana’ Becerra.

Mr. Justice Santana BECERRA delivered ies opinion of the

Court.

- San Juan,-Puerto Rico, December 18, 1964.

On. May 13, 1960, workman Julio Eduardo Cortijo Walk-

er was electrocuted in the course of his employment. The

State Insurance Fund considered the case as a labor acci-

dent .covered by the Workmen’s Accident Compensation

Act, and on January 17, 1961 it entered a decision award-

ing compensation in the amount of $5,184.to minor Vic-

tor Lanzo, brother of the deceased laborer. It ruled that

the said minor was the only person entitled to receive the

benefits of the Act by reason of dependence. The Fund

held that the workman’s death -occurred in the course

of the normal and regular duties of his employment when

he was electrocuted by an uninsulated galvanized cable

which he was /carrying in his hands and made contact

with high-voltage electric current.

On August 29, 1961, plaintiffs Julia, Pablo, Edwin, Vic-

toria, Isolina, Jose Amalio, Angel and Victor Vicente, all

59 .

surnamed Cortijé Walker, filed a claim for pee for

this death against the Water Resources Authority. They

alleged that the workman died without leaving any as-

some of whom ‘‘ depended for their subsistence’’ on what

the laborer provided to them; that his death was due

to the sole and exclusive negligence of defendant Water

Resources Authority by its failure to adopt due precau-

tions and to foresee, as it-should have, that uninsulated

high tension wires endanger the lives of third persons;

and that as a result of the accident plaintiffs have suf-

fered damages and mental and moral: anguish.1 The Au-

thority answered and admitted the occurrence of the ac-

cident and denied the other facts. It alleged as a de-

fense that the accident was due to the. exclusive negligence

of the workman, or of the workman and third persons,

and if no negligence was committed, that this was a for-

- tuitous and unfortunate accident. :

Approximately two years later, on August 26, 1963, de-

fendant filed a third-party claim against employer Anas-

tacio Rodriguez Cubano alleging that he was negligent and

holding him responsible for the accident. It’ alleged that

the employer permitted the construction of works near

defendant’s power lines without taking due precautions so

that no one would come in. contact with them, knowing |

or being bound to know, the hazard involved, and with- .

. out notifying the Authority of the Construction. of such

works near the power lines in order that it could take

action i in such a situation; and that he acted in violation

of an independent, express or implied duty imposed by

law toward the Authority.. It prayed fér judgment against

the rer defendant to indemnify oe or to

1The minor, aatckiee sole beneficiary under the Workmen’ s

Accident Compensation Act, = not sue.

60°.

pay to the Authority any améunt which the latter _— '

be bound to pay the former.

The employer and third-party defendant filed a mo-

tion to dismiss and a motion for summary judgment al-

leging nonliability in law. He attached to his motion for

summary judgment a sworn statement to the effect that

he was an employer insured with the Fund under a po-

licy which covered the workman, and that in addition to

. the amount of $5,184 awarded by the Fund an additional

‘amount of $5,000, the product of a gréup policy which

the employer carried for his employees, was paid to the

beneficiaries. He included a certified copy of the deci-

sion of the Fund ruling that this was a labor accident

covered by the Act. The defendant objected to the mo-

tion for summary judgment, but did not disclose any -

statement or evidence. The court rendered summary judg-

ment dismissing the third-party claim against the em-

ployer. That summary judgment is here on review.

The Workmen’s Accident Compensation Act of 1935

(Sess. Laws, p. 250) provides in § 20 that when an em-

ployer insures his workmen or employees in accordance

with that Act, the right to compensation therein established

‘‘shall be the only remedy against the employer,’’ and in

those cases not covered by the Act the liability of the

employer shall continue to be the same as if that Act '

did not exist. Section.16 of the Act is to the same effect

as to the employer’s liability when the accident is not

covered by that special statute, and refers such liability

to the Civil Code, §.1802.?

Section 31 provides that in cases in which the injury, |

disease or death entitling the workman, employee, or his

beneficiaries to compensation under the provisions of the

Act has been caused under circumstances making a third

2 See the Act of: March 1, 1902, on et" s liability for neg-

ligence in labor accident cases.

a ‘ Rta WO Oe Nis Peo en

' ages. ..

_ party liable for such injury, disease or death, the work-

man or employee or his beneficiaries may claim and re-

cover damages from the third party liable for such in-

jury, disease or death. ‘This same section subrogates the

State Insurance Fund in the rights of such workman or

‘ employee or of his beneficiaries in those cases, and it may

bring action in. behalf of the: workman or employee or

his beneficiaries against the third party. If the Fund does

not subrogate itself and fails to bring action against the’

’ third party, the workman or employee or his beneficiaries

‘shall nonetheless be at liberty to bring such action of dam-

Under the panes of our Workmen’s Accident Cunpen: a4

sation Act, it has been held in this jurisdiction that the

injured eas or employee or: his beneficiaries may

not demand ¢ompensation from the employer under the

common-law liability. rules, in our case, the Civil Code.

~The compensation provided by the.statute is the only re-

medy against his employer available to the workman or

his beneficiaries, provided the case comes within the am-

. bit of the Act. DeJesus v. Osorio, 65 P.R.R. 601, 603; On-

na v; The Texas Co., 64 P.R.R. 497, 500; Rivera v. Indus-:

trial Commission, 67 P.R.R. 526, 528; Fonseca v. Prann,

282 F.2d 153, 157, cert. denied, 365 U.S. 860. When the:

compensation statute does not cover the case, see Arroyo

v. Plaza Provision Co., 68 P.R.R. 889, 892.

-In view of the historical experience of the workman’s

difficult uphill strife to obtain compensation in labor ac-

cidents, when he was bound to establish convincingly acts

of negligence of his employer or of another fellow. work-

man and the employer could in turn allege as a defense

his own negligence or carelessness, a historical situation

which has so often forsaken the workman or his family,

the lawmaker elected.in this case an integrated system

on the basis of a social, objective liability in this sphere

of labor-management relationship. It could have been at

the expense of subjecting the workman or his family as

respects the employer to reasonable recovery of'statutory —

compensation solely on the basis of a criterion of de-

pendence, as compared with a greater compensation and a

greater relationship under the general civil-law rules, and

of depriving him of the latter. The lawmaker made his

selection from among factors of convenience, and applied

an integrated social system of objective liability. The im-

munity afforded to the employer from other acts or re-

medies—{ 20—in the cases covered by the statute, should

have been essential to the objective liability system adopted

as a means of encouraging every employer to take out in-

surance, without which the system could not be effec-

tive.

This legislative criterion of granting to the employer

immunity from. remedies other than the compensation be-

came even more evident in 1935 when the présent statute

was enacted. The 1928 legislation—Act No. 85—which was

substituted by the present legislation, contained a similar

provision— § 33—declaring the statutory compensation the

only remedy against'an employer who insured his work-

men. Notwithstanding that provision, Act No..85 granted -

in § 44 an action of damages in favor of the workman or

his heirs against an employer when the injiries were

caused by an illegal act or criminal negligence of his em-

‘ployer, in which case’ the workman or his heirs could

waive the statutory benefits. Similarly, § 45 authorized

the Industrial. Commission to subrogate itself in the right

of the workman or his heirs and to recover damages from

an employer responsible for the injury caused by his il-

legal act or criminal negligence. Those provisions of the

former statute were superseded since 1935 when the pre-

sent Act was adopted, which shows a specific and de-

finitive criterion of the lawmaker not to grant general .

PR A, er : OT PEN ETE ELE PON OER RO OEE AI

Laie Ne 20 At ae Rat he UO LA

__—-With the foregoing as “backeround,. let us examine ‘the

action of damages of any kind against the employer, re-

gardless of his’ actions in the Aquilian sphere and the de-

gree of fault or negligence, with the. exception of -those

situations provided in § 15—uninsured employer-in which,

notwithstanding the benefits of the Act granted to. the ~

' workman or his family, they may sue the employer in tort

as an additional section for failure to take out insur-

ance. This is the only case. Oh ONS Se Se

——

petition. A claim for damages against the employer by

the beneficiaries or family of the deceased laborer is not

under our consideration in this litigation. In a situation

such as this this Court has already pronounced itself. This

notwithstanding, what the petition actually involves in the

last instance is that same employer’s tort liability to which

we have referred.

The beneficiaries of the workman have sued appellant

Authority alleging that its negligence caused the death.

Appellant holds the employer liable as third-party defend-

ant on the ground of his alleged negligence, alleging that

he should indemnify plaintiffs. In the alternative, which

would amount to the same thing, to pay to appellant the

whole or part of any amount which the latter may be bound

to pay to plaintiffs. The insured employer is placed in

the position of having to contest and defend himself against

a claim for damages for the death of one of his employees

in the course of employment, based on his negligence. °

A third-party claim against the employer under the cir-

cumstances of the record—insured employer and the acci- -

dent covered by the compensation statute—is not available

in law under statutory proyisions-such as 4 20, nor on the -

theory of ‘‘contribution’’ in which a joint tortfeasor would

be liable to another tortfeasor, nor. on the theory of the

right of a defendant in tort to be ‘‘indemnified” by a

ate lida, eer wort ~ cs

¢ - :

third-party defendant in connection with the facts,> The —

great majority of courts has upheld the impropriety a

such a third-party claim against. the employer where there

is an exclusive-remedy clause such as that of our stat-

. ute. In referring to the matter, Professor Larson sums

up the ground of such impropriety according. to the judi-

cial rule: The, employer is not liable to the workman in

tort; therefore, he can not be a joint tortfeasor with the

. third person and ‘third-party plaintiff. The liability that

rests upon the employer is an absolute liability irrespec- -

tive of negligence, and this is the only kind of liability

that can devolve upon him whether he is negligent. or

_, not. The workman’s claim or remedy against his employer

is solely for the statutory benefits; his claim against the

‘third party is for damages. Both causes of action are in

law different in kind and they can not result i in a common

legal liability,‘

Apart from the refined concept, done is a more simple

common-sense ground which is also‘ taken into account.

To permit the third-party claim would amount to doing

indirectly what the lawmaker has forbidden to be done

directly. It would amount to considering the employer’s

3 Although the English common-law rule prevailing in the States

and in the federal jurisdiction has been not to recognize—in the

absence of legislation—the right of a tortfeasor to require another

tortfeasor to contribute to the payment ‘of the indemnity, see

Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 285; and

although this Court has declared and established the solidary

liability of each tortfeasor toward the injured party, Prado v.

Quinones, 78 P.R.R. 309; Rivera v.-Great American Indemnity

Co., 70 P.R.R. 787; Cruz v. Frau, 31 P.R.R. 87; Cubano v. Jim-

enez, 32 P.R.R. 155, in Garcia v. Government of the Capital, 72

P.R.R. 133, we adopted in this jurisdiction the rule of ‘‘contri-

bution.” In ordinary cases this rule can not govern in situa-

tions such as those in the case at bar because of § 20.

42 Larson, The Law of Workmen’s Compensation 230‘ et seq.

(1961), up to date Supp. 1963. See American Mut. Liability Ins.

Co. v. Mathews, 182 F.2d 322 (C.A. 2); Slattery v. Marra Bros.,

182 F.2d 134 (C.A. 2), cert..denied, 341 U.S. 915.

od ed a ee ee ee 2 «

Pitan Pa hee eet sie Oa me

negligence by the rear door of a third-party claim and

holding him liable .in tort for such negligence. -

Appellant contends that its third-party. claim die

the employer is based ‘‘on a jurisprudential exception’’ to

5 the employer’s immunity. It argues that ‘its third-party

from a party which has been jointly negligent with an-

other in.causing the damage, but that its right to claim

‘from a third party is based ‘‘on the right: to be ‘indem-

nified’ for the breach of a separate and independent duty

of the employer toward a third party expressly and. im-

pliedly created by law.’’ And it explains that its right -

to claim from the employer ‘‘is not exactly for damages

but for the right to be ‘reimbursed or ‘indemnified’, not

_by reason of the i injuries to the injured workman but as a

result of the breach of an obligation or separate and in-

dependent duty of the employer toward the third party. ’*

After a study of the case law cited by appellant, we

are not convinced that there is a. well- settled ‘‘jurispru- -

dential exception’’ to the employer’s immunity. We re-

peat, as stated at the outset, that the prevailing doctrinal

rule is that such statutory immunity can not be defeated

; from the -fact that the technical distinction between the

; concepts | of ‘‘contribution’”? and ‘‘indemnity’’ at times,

and for all practical purposes, may seem to be cutting

it a bit: fine, the case of American District Telegraph Co.

_v. Kittleson, 179 F.2d. 946 (C.A. 8), which would lend

Some support to appellant’s position, was decided on the

basis of a rule which does not govern in: our system and

which seemingly has not been well settled either, on the

basis of the presumption of implied liability of law in

if the negligence of the former was the principal or

primary negligence and that of. the latter the secondary.

Other cases inveked are either admiralty cases governed

_ by the particular norms of that sphere of law, or the

alleged right of ‘‘indemnity”’ is based on a contractual

relationship, or is governed by statutes providing for the

reciprocal liability relationship between two mutual wrong-

doers. Larson, cited by appellant, makes a comprehensive

exposition of the matter in op. cit. supra at p..231 et seq.

is much fiction and:artificialness in those distinctions, and

_ advises, which is the proper thing, that this problem is:

for the lawmaker and not for the courts to speculate. See

cases cited above and Royal *Indem. Co. v. Southern Cal.

‘Petrolewm Corp., 353 P.2d 358 (N.M.) in which it was

clearly said that the exclusive remedy against the.employer

afforded by the compensation statute defeats the common-

law right of ‘‘indemnity’’, Wiliam Bros. Lumber Co. v.

. Meisel, 68: S.E.2d 384 (Ga.); Farrén v. New Jersey Turn-.

pike Authority, 106 A.2d 752 (N.J.); Hunsiucker v. High

Point Bending & Chair Co., 75 S.E.2d 768 (N.C.); Urda .

v. Pan American. World Airways, 211 F.2d 713 (C.A. 5),

where an employee died in Brazil in the course of employ-

ment, and after his widow received compensation under

the Florida Workmen’s Compensation Act, a federal court

rejected her cause of action of damages under the rule

of ‘‘lex loci delicti’’ which she had under the Brazilian

law, on the ground that the Florida statute =" an

exclusive remedy to the employer.

Whether or not the distinction is good or effectual, or

whether or not the common-law rule of ‘‘indemnity’’ or

the primary or-.secondary presumption of negligence gov-

-erns in this jurisdiction, it is unquestionable that under.

any of the concepts invoked, or under any of the concepts

‘whereby the employer may be brought in, the undeniable

* fact would always be at bottom that any liability-imposed

upon the employer as third-party defendant, whether for

I ALOT LR TIPE L ILL TOES A RS SENS tes ee CO

mH NE mh

67 ;

_ damages properly, for ‘‘contribution,’’ or for ‘‘indemnity”’,

would have its origin in a death declared a labor accident.

We are not going to open a gap in the compensatory

system by ‘‘jurisprudential exception,’’ and in any event

let the lawmaker have his say. - gaike o..

The judgment dismissing summarily the third-party .

| claim in this case was proper and will be affirmed,

Appendix B-4

In THE SuPREME<CourRT oF PusErRto Rico

R-64-29 Review

Eiezer Marcano Torres, .

PLAINTIFF |

‘Puerto — Water RESOURCES AUTHORITY,

DEFENDANT-PLAINTIFF AGAINST THIRD-PARTY-PETITIONER

-Satvapor L. Moratss, '

THIRD-PARTY-DEFENDANT-APPELLEE

Judge of Division, pro-tempore, Mr. Justice Davila

and Mr. Justice Ramirez Bages. |

Separate opinion of Mr. Justice Ramirez Baces.

San Juan, Puerto Rico, January 20, 1965

' The question raised in this proceeding—as the one raised

in Cortijo v. P.R. Water Resources Authority, decided

December 18, 1964—requires us to determine whether in

the case of an injured worker who, after receiving com-

pensation from the State Insurance Fund, files a complaint .

' against a third party, that is petitioner Puerto Rico Water

Resources Authority, can the latter claim indemnization

by means ofa third-party claim against the employer of

the injured worker on the ground that: said employer al-

lowed the construction of a building in violation of-the ~

provisions of the Building Construction. and Repair In-—

dustrial Safety Regulations (29 R. & R.P.R. §§ 326-29,

- _ Regulation 25(a), promulgated under Act No. 112 of May |

5, 1939—29 L.P.R.A. §§ 322-323 and 335—), as a result of

which workman Eliezer Marcano was injured, even though

§ 20 of the Workmen’s Accident Compensation Act pro-

vides that the right established in said Act ‘‘to obtain

le Ai atts eh ee anes nie eet Ee

~ . . :

nse reg Cea "%,

_ compensation shall be the only remedy against the em- .

ployer.’’ ; mi oie ah hee

In the case of Cortijo, supra, under circumstances simi-

ployer is ‘inappropriate because under these circumstances

_ ‘the remedy provided by the Workmen’s Accident Compen-

sation Act is the ‘‘only remedy against the employer.”’

Although we agreed that the employer had no liability;

‘~ we believe that we should set forth the grounds for this

conclusion. . Ps ;

In cases like this it has been sought to- hold the em-

ployer liable either ‘by invoking the right of contribution:

referred. to in Garcia v. Government of the Capital, 72

P.R.R. 133 (1951),-or the right of indemnity provided by

§ 1054 of the Civil Code (31 L.P.R.A: § 3018).

In view of the provisions of § 20 of the Compensation

_ Act, a person can not claim the right of contribution

against an employer when that person is liable for the

injuries suffered by-an employee, together with the work-

man’s employer, in case such injuries are compensable

under said Act. Halcyon Lines v. Haemn, Ship Corp., 342

U.S. 282 (C.A. 3, 1952); Fidelity & Casualty Co. of N.Y.

‘v. J. A. Jones Const. Co., 325 F.2d° 605 (C.A. 8, 1963) ;

Bertone v. Turco Products, 253 F.2d 726 (C.A. 3, 1958) ;

Peak Drilling Co. v. Halliburton: Oil Well Cement Co.,

215 F.2d 368 (C:A. 10, 1954); Hendrickson v. Munnesota

“Power & Light Company, 104 N.W.2d 843 (Minn. 1960);

| Employers Mutual Liabil. Ins. Co. v. Griffin Constr. Co.,

280 S.W.2d 179 (Ky. 1955) ; Farren v. New Jersey Turn-

‘pike Authority, 106 A.2d 752 (N.J. 1954) ; “Effect of Work-

men’s Compensation Act on Right of Third Person Tort-

feasor to Recover Contribution from Empleyer of Injured

or Killed Workman,’’ 53 A.L.R.2d 977. The reason is that

can not recover contribution from the other if the latter

pashan

has been relieved from the claim for the tortious act by .

a personal defense ‘such as the provision of § 20 of the

Workmen’s Accident Compensation Act of Puerto: Rico.

In the: instant case it is alleged, however, that the em-

ployer of the injured workman is not relieved by. the

provision of § 20 of the Workmen’s Accident Compensation

Act, from an indemnity claim filed by a third person on

* the wrongful: conduct of said employer. in regard to that

third person.

_Federal courts and of state jurisdictions in the United —

States have upheld the right to recover indemnity in cases

-ef longshoremen employed by a contractor to unload the.

vessel of a third party when the stevedore received in-

juries while‘ working in the vessel, not caused by neglli-

gence on the part of his employer but due to defective:

equipment supplied by the latter (the workman received

_. compensation under the Longshoremen’s and Harbor

Workers’ Compensation Act, and: afterwards sued and

' recovered damages from the owner of the vessel), either

under the theory of the contractor’s implied warranty

of workmanlike service, Italia Soc. v. Ore. Stévedoring

Co., 376 U.S. 315 (1964), or that the contractor had

breached his contract with the owner of the vessel: to’

furnish labor and supervision ‘“‘for the proper and effi-

cient conduct of the work’? or had breached his contractual

undertaking to perform with reasonable safety. Weyer- -

’ -haeuser S.S. Co. v. Nacirema Co., 355 U.S. 563 (1958);

’ Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124 (1956). In

these cases the Compensation Act provided that ‘‘the lia-

bility of an employer .* * * shall be exclusive and in place

of all other liability of such employer to the employee,

his legal representative, husband or wife, parents, de-

pendents, next of kin, and anyone otherwise entitled to

recover damages from such employer * * * on account of

such injury or death.’? Horton v. Moore-McCormack Lineg,

ee ee 7m

RE RB eBay 6s Site as toes 0h MOAT EV.

Inc., 326 F.2d 104°(C.A. 2, 1964); Damanti v. A/S Inger, -

314 F.2d 395 (C.A. 2, 1963); Konindlyke Nederlandsche,

etc.z. Strachan Shipping Co., 301 F.2d 741 (C.A. 5, 1962) ;_

Northern Natural Gas Company v. Roth Packing Company,

323 F.2d 922 (C.A. 8, 1963); Crawford v. Pope &. Talbot,

Inc., 206 F.2d 784 (3 Cir. 53); Hart v. Simons, 223 F. Supp.

109 (D.C.E.D. Pa. 1963) ; Blackford v. Sioux City Dressed

Pork, Inc., 118 N.W.2d 559 (Iowa 1962); Morom v. Intru-

sion-Prep we Incorporated, 165 N.E.2d 346 (Ill. 1960) ;.

San Franciséo U. Sch. Dist. v. Califormia Bldg. Mam. Co.,

328 F.2d 7 (Cal. .1958) ; Baugh v. Rogers, 148 F.2d 33

(Cal. 1944); McCom, The Third Person in the Com-

‘pensation Picture: A study of the Liabilities and Rights

of Non-Employers, 37 Tex. L. Rev. 389 (1958-59); The

Exclusive Remedy Provision of Workmen’s Compenso-

tion Acts — Distribution of Risk Between a Concurrently .

Negligent Employer and Third Party,.25 U. Chi. -L. Rev.

522 (1957-58); Recent Developments in the Iowa Work-

men’s. Compensation Law Where Negligent Third Parties

are Involved, 37 Towa L. Rev. 84 (1951-52).

In the state of New York, even in the absence of a

contractual relation, the right of indemnity has been held

when the employer has been actively negligent and the

third party from whom the worker claimed did not con-.

tribute to the happening of the accident through any act

of affirmative negligence on his part, or when there exists

factual disparity between the’ delinquency of the employer

.and that of the third party and when the evidence shows

that the employer is the primary wrongdoer. In this case,

the defense that liability of employer. was exclusive under

a compensation statute was rejected in terms similar to

those hereinbefore stated. McFall v. Compagnie Maritime .

. Belge (Lloyd Royal) S.A., 107 N.E.2d 463 (N.Y. 1952) ;

Rich v. United States, 177 F. 2d 688 (C.A. 2, 1949) ; Rober-

son v. Bitner, 221 F.Supp. 279 (D.C.E.D. Tenn. 1963) ;

Great Northern Railway Co. v. Bartlett € Co. Grain, 298

F.2d 90 (C.A. 8, 1962); Shell Oil Company v. Foster-

Wheeler Corporation, 209 F. Supp. 931 (D.C.E.D. Ill. 1962) ;

Krambeer v. Canning, 184 N.E.2d 747 (Ill. 1962). .

In II-Larson, The Law of Workmen’s Compensation

233-238, §§ 76.30 et seq., it is stated that the origin of

an indemnity. claim against an employer for damages

compensable under a’ workmen’s accident compensation

Act, depends exclusively on whether the liability is due |

to the’ damages for which. compensation is provided. In-

_démnity is compensable in cases such as Italia Soc., supra,

Weyerhaeuser, supra, Ryaff, supra, and others, on the —

basis of obligation or warranty of a contractual nature, -

because the action against the employer is not due to

the damages caused, inasmuch as its origin can be traced

to a specific contract between the third party-plaintiff and

the employer. But, in cases of an implied obligation of

' @ primary wrongdoer for a tortious ‘act to reimburse the

secondary tort-feasor, even though the form of the action

is not ex delicto, the origin of the action is the damage

caused and the concurring circumstances, and the liabil-

ities arising therefrom and the obligation to indemnify

_depends exclusively on the comparison of the relation of

. Circumstances in White.v. McKenzie Electric Coopera-

‘ tive, Inc., 225 F. Supp. 940 (D.C.D.N. Dak. 1964) are sim-

ilar to those in the case at bar.- The injured worker, after

receiving compensation, filed a third-party complaint for |

- , damages against an electric cooperative, and the latter,

in turn, filed a third-party complaint against the employer

alleging that it was negligent in that it violated certain

safety requirements provided by law amd that it owed a

duty to third-party plaintiff ; that as it breached such duty

the cooperative was entitled to indemnity from the em-

ployer; that if found guilty of negligence in the main

LL ALE LD OL IIE EI IEA RT wan ee ne ee

‘action, such negligence was passive while that of the

-' employer was. active. The state statute on workmen’s-

compensation provided that employers who comply with

* * * for injury to or death of any employee’? and that

‘‘the payment of compensation * * * shall be in lieu of

any tad all rights of action whatsoever against the em-

that the lagislative intention inferred from the language

of the statute is to provide an exclusive liability ; that ‘‘the

great weight of authority is that such exclusivity provision,

in.and of itself, eliminates any cause of action on the

ployer i injured * * * employee.’’? It was concluded ~

_ part of a third party against a complying employer.’’

The court also added that, furthermore, im this case the .

. allegations do not show that -a contractual relationship,

either actual or implied, existed between the cooperative

and the employer, so, therefore, the doctrine established

in‘Italia Soc. supra, or the one in Ryan, ra, can not

be invoked. The court rejected the ‘‘passive-active negli-

gence”’ theory because ‘‘there can be no-common liability

to the employee when the liability of the employer is

governed by the terms of a workmen’s compensation act

and the‘liability of the third party is- based on common

law negligence.’? City of Abilene v. Jones, 355 S.W.2d

597 (Tex. 1962); A. O. Smith Corp. v. Associated Sales &

Bag Co., 113 N.W.2d 562 (Wis. 1962); Slechta v. Great

Névthers Railway Company, 189 F.Supp. 699 (D.C.N.D.

Towa 1961), aff’d, Great Northern Railway Company,

supra; Peak Drilling Co., supra.

- In- Slechta, supra, the .claim for indemnification was

based on the employer’s duty to handle and maintain the

railroad box-cars in good condition so they would not —

cause any damages to the owner thereof, and it was in

the handling of a boxcar that the worker who received

compensation was injured. The court, although it-recog- _

ee es

nized the right to indemnification when an employer

breaches an. independent, contractual, or implied duty in

law, concluded that under the circumstances previously

_ stated it could not be inferred that such duty existed.

In the instant case it is alleged that negligence on

the part of the petitioner caused the accident as a result

of which the worker who was compensated was injured,

and petitioner in ‘turn alleges that the employer owed

it an independent duty of complying with-certain safety

requirements provided by law and that employer’s non-

compliance was the cause of the accident, and that any

_ loss sustained by petitioner on that account would be the

result of the fault or negligence of the employer. It has

not been alleged that such loss, if any, was due to the

violation by the employer of any express or implied con-

tractual obligation owed the petitioner. Although the —

Workmen’s Accident Compensation Act as to the em-

ployer’ 8 immunity against claims by reason of compens- -

able damages sustained by one of its employees is couched

in terms somewhat different from those of the Act invoked

that ‘‘the right * * * to obtain compensation shall be the

only remedy against the employer,’’ it clearly and ‘un-

doubtedly provided that the employer should not be sub-

ject to any other claim arising from damages sustained

by the injured worker. Violation of such safety regula-

tion by the employer furnishes the basis to systain that |

negligence on the part of the employer was another direct

cause of the accident in question, so that actually in the

original complaint and in the third-party complaint it is

alleged that petitioner and the employer are jointly liable -

for damages sustained by the workman. We do not con-

sider it sound to recognize the right of indemnity on the

basis of differentiation as to quality, extent or degree’ of’

' negligence of the third’party and the employer, inasmuch.

as, after all, the origin of such right is the damage caused 7

to the worker and the obligation to indemnify depends

exclusively on the comparison of the relations of both

parties with respect to damages.. Therefore, in recog-

nizing the right of indemnity in such circumstances is.

an indirect way of imposing’ liability on the employer,

from which the law relieved him.

For the reasons stated the summary judgment rendered -

by the trial court shall be affirmed.

Mr. Justice Bianco Lvao, Concurring

San Juan; Puerto Rica, January 20, 1965

Eliezer Marcano ae, rid who worked in con-

‘ struction jobs for the insured employer Salvador L. Mor-

ales, sustained an accident which was compensated under |

the Workmen’s Aceident Compensation Act, when he came

into contact with some high tension electric wires of the

lines served by the Water Resources ‘Authority. After

having taken the proper steps with the State Insurance

Fund and under the provisions of § 31 of Act No. 45 of

April 18, 1935, 11 L.P.R.A. § 32, which allows the worker

to claim when the accident has happened under circum-

stances which made a third party liable, he brought action

against said public enterprise alleging that the injuries

received were: due ‘‘solely and éxclusively’’ to the negli-

gence of said defendant, consisting of specific sffirmative

acts.?

1 Paragraph 13 of the complaint, insofar as pertinent, reads as

follows: ;

, **. . . which was aware that such construction work re-

ferred to above was being executed at Munoz Rivera Avenue,

corner of Arroyo Street.in Hato Rey, P.R., having intervened

directly in’ the approval of the plans for the electrical lay-

out for said construction; and in view of the proximity of

said high tension electric wires to the construction work it

' eould reasonably foresee and anticipate the occurrence of an

accident like the one which happened ‘in the case at bar;

without having given nevertheless, any sort of warning to

Oo eI BRINE ES ROLE:

Seventeen months afterwards the Authority. filed a

third-party complaint against Morales, the employer, al-

leging that he, illegally, imprudently, and negligently, per-

formed or allowed to be performed construction work in the ~~

"surroundings and vicinity of the installations and lines of

the third-party plaintiff, without taking care to prevent

' any person from coming in contact with such installations

and lines, without notifying the Authority in order to allow

it to take steps in such situation and in violation of an

independent duty, express or implied imposed by law on

the Authority, all of this being the sole and exclusive cause

of the accident im this case.’’ It further stated that, were

it liable to plaintiff, the loss suffered on that account would

be the result of the fault or negligence of the third-party

defendant, and the.latter would be bound to reimburse the >

Authority the total amount of such part of the amount it

would have to pay the plaintiff party.

The third-party defendant moved for summary judg-

ment on the ground that in the case of an insured em-

ployer, the remedy provided by § 20 of the Workmen’s

Accident Compensation Act was exclusive, to which plain-

tiff agreed, thereby admitting that he refused to join him

as party defendant. The trial court peer the motion and

dismissed the complaint.

the contractor in usin of the job hereinbefore referred to,

or to his laborers, of the danger of such electric wires, mor

having taken any precautionary measures to prevent said

accident, those wires ‘not being insulated; nor having main-

tained an appropriate and strict inspection of the aforesaid

electric line, knowing, as it did, that such construction work

was going on, inasmuch as not ‘only did it approve the elec-

trical plans thereof as mentioned above, but defendant was

also supplying power services to the firgt floor of said build-

ing under construction and, in keeping, besides, high tension

electric wires hanging from posts in a commercial area, such

as the one where the accident took place, where not only

is the construction industry in full swing, but also there are

some other activities in keeping with the meni and com-

mercial development of that area.’

’

imate iti at ei tatactite tala ctl ciate .

77.

We find it unnecessary to discuss whether the third-

party complaint lies either under the contribution or the

indemnization theory, see we v. P. R. Water Resources

. Authority, ... P.R.R. ,... (decided December 18, 1964), for

no matter how the origin of the liability is sought to be

characterized, an examination of the allegations which we

have summarized shows that the third-party defendant was

that is prohibited by Rule 12.1 of the Rules of Civil Pro-

cedure of 1958 now in force, which only permits it where

plaintiff for all or-part of the claim of the original plain-

tiff. The basis of the action brought in effect leads to make

- 2Under Rule 14(a) of the Rules of Civil Suited of 1943, the

_ complaint against a third party could be brought when it was

alleged that the third-party defendant was or could be liable to

the third-party. plaintiff or the original plaintiff. In this latter

ease the action of the defendant had no other effect than an offer

to the plaintiff to amend the original complaint for the purpose _

. of. joining an additional deféndant. If the plaintiff ignored this

- offer—as it frequently happened so as not to deprive the federal

district courts of jurisdiction by reason of difference of citizenship

—the dismissal.of the third-party complaint was in order because

he was not before the court. It is for this reason that I consider

erroneous our ruling in Simonpietri v. Blanco; Lippitt & Simon-

pietri, 74 P.R.R. 499 (1953), in affirming a judgment of the trial

‘eourt which held liable the third-party defendant for the payment

of damages without the plaintiff having amended. his complaint

to join him as an additional party defendant. Ch. Vinas v. Pueblo

Supermarket of Puerto Rico et al., ...... P.R.R. ........ (deeided Sep-

tember 14, 1962), especially its footnote 5.

In 1946 the corresponding federal rule was amended for rea-

sons very” peculiar to the federal: jurisdiction to eliminate the

- provision which permitted a third-party complaint where the latter

was or could be liable to plaintiff. Upon revising our rules in

1958 we adopted such amendment. It is advisable to re-examine

this aspect of our procedural system.

See, in relation to the problem discussed, the report of the

Advisory Committee on the Federal Rules of ‘Civil Procedure re-

garding the 1946 amendment, which appears in 3 Moors, Federal

Practice 413-15 (2d ed.); CuarK, Experience Under the Amend-

ments to the Federal Rules of Civil Procedure; 8 F.R.D. 497 (1949) ;

ow - A en Er

moore

the third-party defendant solely and exclusively liable for

the damages caused. Liability which may be only enforced

by plaintiff Marcano. .Procedurally the third-party com-

plaint was not available to the defendant. This in no way

prevents him at the proper time adducing and establishing

as a defense that he did not commit any negfigent act from

which liability may ensue. Cf. Colon v. Water Resources

Authority, ... P.R.R. ... (decided May 7, 1964), and that

it may only be attributed to the third party.

The judgment will be affirmed.

Lanpis and Lanpts, Federal Impleader, 34 Cornell L: Q. 403

(1949); Porgat, Third Party Practice Under the New Rules, 25.

AB.A.d. 858 (1939) ; and 29 Va. L. Rev. 981 (1943).

“”

‘

’

aoe

io o“

: \

A ARR CN PRL ACORN AI

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.