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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1967
- **Citation:** 389 U.S. 905

## Text

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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 —

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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

7S
.

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

7
oo bide : - RN REET IN, AMER NN WRN BE NR 0 IN IE ETI LLD RELY Se
- . : c a . ry

ah

4

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 .

ae

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?

e

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-

3

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,

4

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- -

5

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.’’

a

Statement of the Case - Raises '

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-

22

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

93

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

%
~“

24

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

-
4

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).

6

25
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.

26

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

27
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.

28

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/

31

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

g,

33

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

4

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.

35

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.

36

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. ~

87

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

38

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,

39

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. :

e

ee 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.

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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

claim is.not based on the right to claim “‘contribution’”’ ©
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
through the indirect means of the third-party claim. Apart ©

; 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
which a joint tortféasor responds to another tortfeasor ©

if the negligence of the former was the principal or

primary negligence and that of. the latter the secondary.

66

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.
However, Professor Larson is of the opinion- that there ©
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

we
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
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

-joined in the action to answer to the original plaintiff, and ©

that is prohibited by Rule 12.1 of the Rules of Civil Pro-
cedure of 1958 now in force, which only permits it where

there is any party who is or may be liable to the third-party ©

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

78
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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0781%3A1. Public record. Not legal advice.