# Petition for Writ of Certiorari — Garrett v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0807%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 952 ## Text . \ LIBRARY ) . SUPREME COURT. a 24 Is Tae | Seren at te at Sate No. 472 B. A. Warsox, . f Petitioner,. . ä 33 SEMEN Gur Stevepore Corporation, | ; 7 Respondent. PETITION FOR WRIT OF CERTIORARI TO i REVIEW DECISION OF THE FIFTH CIRCUIT COURT OF APPEALS | Z — — — — 1 x Bris ALLEN. eae Houston First Savings Building, Houston, Texas 77002 Auten, TayLor & ZaouRIDEs Houston First Savings ’ Building, Houston, Texas 77002 . Attorne for Petitioner Of Counsel: W. Juss Roperts 617 Americana Building, Houston, Texas 77002. FIDELITY PRINTING COMPANY, INC., HOUSTON 5 8 5 e 5 * . ; „ 57 4 5 Fe , 7 f a oe 1 5 7 ; hs 5 N 7 : 15 * g 1 ‘ 0 — * * — * * . ' „ . oS “i i f . A 8 “ — x / ph 5 25 . ’ ; \ . , , i * * 1 . 7 * 8 — . A * — 0 * INDEX ae ue fice ig alain Opinions Below 5 nae e Jurisdiction .... ä — ie : oe Question Presented 5 e Statutes Invalved. eis ee Statement of the Case — 8 3 ‘Reasons for Granting Writ .. 3... . 4 Conclusion a a ug —.— 8 Proof of Serviee .. e ame APPENDIX A 2 of the . ee APPENDIX B— Refusal of Rehearing by Fifth Circuit 8 Armen C Summary Judgment by Trial Court... 4 Arrh mp D- 33 USC 905 Longshoremen’s and Harbor Workers Compensation Act 9a “Appanprx BE — Seetion.183 of Restatement of Contracts 10 Arrmm F — Order by Deputy Commissioner. — — lla 2 Arrmurr G— Opinion by District Court in 66-H-881....... 18a APPENDIX H Judgment of Been Court in 66-H-681.. 28a Table of Authorities . 8 * 5 ae 2 N. TABLE OF AUTHORITIES . PaGE 3 Mason 6 7. case 570 Cir. Ct. a Massachusctis i ae 7 1 wine 2,3, ber 8 . Aae v The Esser Fired Marine mee Co, (Baa) ae Benedict on Admiralty, Vol. I, p. 151 A 6° - Benedict on Admiralty, Vol I, p. 151, para, 71 SL ink OO a Crumady v. Joschin Hontiric Besor, 968 US. 423, p. 429; 15. 79 8. Ot. 445, p. 448 . 5 Davis v. Dittmar, 2nd Cir., 6 zd. 141 3 Italia Societe v. Oregon Stevedoring Co, Ine, 376 US. 815; 5 83 8. Ct. 748, Footnote No. 6 és 5,6 Jackson v. Lykes Bros. 8.8. Co, 448, — U. S. . ; 87 S. Ot., 5 41419 decided May 8, 1967 ae ' Pacific Inland Navigation Co, v. Course, 9th Cir. 368 Fad. 50 6 Reed V. Yaka, 278 US. 410; 88A S.Ct. 184. 5 _ Ryan Stevedoring Co. v. Pam Atlantic Steamship Corp., 350 U.S. 124, p. 181; 76 8. Ct. 282, p. 286 4,5,6,7 Seas Shipping Co. v. Sieracki, 378, U.S. 85; 66 8. Ct. 872 5 ay Seattle Stevedoring Co. v. Compania Maritima & Maritime : Co. of the Philippines, 373 F2d. 9, p. 11. —. — a The Talfarli, 277 F. 391, 2nd Cir. Pa 7 V. 8. v. Cornell Shipbuilding Co., 202 U.8. 64, 50 Law Ed, n See 3 6, 7 Waterman Steamship Bd., Dagon e Ine, 7 27 US. 2, 5. 424; 81 Ct., 200, p. 202 ... Welle v. United States, $18 US., 257, p. 260 „ Petitioner, on Gvrr Sraveporr Conporation, = of : Respondent. : : ___ PETITION FOR WRIT OF CERTIORARI TO REVIEW DECISION OF THE FIFTH CIRCUIT COURT OF APPEALS = 5 B. A. WATSON, petitioner, prays that writ of certiorari issue to review the Judgment of the Fifth Circuit Court bf Appeals entered in the above and entitled cause on the 28th day of March, 1967, and its Order refusing Rehearing n Bane, entered on the 8th day of May, .... crrarons OF OPINION r-, The opinion of the Trial Court appears in 267 FS. 503; _ the opinion of the Fifth Cireuit Court of Appeals and Order _ overruling petition for Rehearing is reported in 347 Fad. 946. N abe at baue, Flak art bee 5 , | JURISDICTION | -" Jurisdiction of this Court is invoked under 28 USC 1254 (1) and under Supreme Court Rule 19(1 D. g QUESTION PRESENTED =} May an 1 longshoreman aß a third-party bene- . ficiary of: his employer’s warranty to the vesselowner of Workmanlike service or as the ‘equitable owner of the ship- owners right to indemnity maintain a suit against his non- shipowner stevedore employer for damages resulting from injury notwithstanding the provisions of 33 USC 905, where the injury is caused by the unseaworthiness of the vessel resulting from his employers breach of its warranty of workmanlike service and he is unable to bring suit against the vesselowner because of its absence and the vessel being transferred several times and reported broken up, with its bow e ee into another vessel, et cetera 4 ‘STATUTES INVOLVED ee Section. 905 (33 USC) of the 3 and Harbor Workers’ ben tears Act, pene in Ap- pendix. D. + 2 Warranty of seaworthiness under the e Mari- time Law. | „ 3. The Stevedore's obligation to perform ite work aboard the vessel in a workmanlike manner. N iy 4. Bestatement of Law of Contracts Sec. 133 printed i ie —_— B. 5 6 | STATEMENT OF THE CASE Re “On: February 6, 1957, petitioner, B. A. WATSON, while a es employed as a e by e GULF * N ship foreign corporation, flying a foreign flag, which vessel 2 STEVEDORE werteten who 1 no 3 or operational interest in the vessel upon which he sustai ned very serious injuries because of the unseaworthiness of the vessel, SAN DIMIT RIS“. The vessel was owned by a one haas changed owners and names on s€veral occasions and has been reported broken up and the bow incorporated into another vessel. Appellant was unable to sue the owner _ by reason of the foregoing and other reasons. Petitioner, not being able to sue the vesselowner, sought to maintain suit against his stevedore employer for fall damages as a third-party beneficiary: of his employer’s warranty of work- manlike service and as the equitable owner of the shipown- ers right to indemnity. Respondent moved for Summary Judgment based on Section 33 U. SC 905 printed in Appendix D. The Trial Court sugtained Motion for Summary Judg- Me the Longshoremen’s and Harbor Workers’ Compensation No. 3269-212 Styled Bertram A. Watson v. Gulf Stevedore ment holding 33 USC 905, supra was an absolute bar to ‘prevent the bringing of the suit. On the 28th day of March, 1967, the Fifth Circuit Court of Appeals affirmed the Trial Court’s decision holding that there was no.authority for appellant to maintain the suit as a third-party beneficiary _ of the stevedore’s warranty of workmanlike service or as the equitable owner of the shipowners. right to indemnity, _ and that 33 USC 905 was an absolute bar to the suit being maintained and further held that longshoremen were as- sured of their employer being required to pay compensa- tion. On the 8th day of May, 1967, Petition for Rehearing En Bane was denied. As an incident to the injury, petitioner has sought total and permanent disability benefits under Act and asks the Court to judicially notice, see Wells v. United States 318 L. S. 257 p. 260, that petitioner in Cause _ Corporation and Texas Employers” Insurance Association, eatery, the Panes: 8 of tahoe w ‘ound to ge ig be totally and permanently disabled by reason of the injury, the Order is printed as Appendix F. Respondent appealed, which appeal was docketed as Cause No. 66-H- 881, Styled Gulf Stevedore Corporation, et al, v. R. J. Shea, Deputy Commissioner, et al., Southern District of Texas, Houston Division; the Order of the Deputy Commissioner was then set aside; the Distriet Court's opinion is printed as Appendix G. Neither of the foregoing are reported to petitioner’s knowledge. Petitioner has taken an appeal which is now pending in Cause No. 25,007 in the Fifth Circuit Court of Appeals, from the Order of the District Court setting aside the Compensation ‘Order. Petitioner continues to be totally disabled by reason of the injury with respondent by the use of the technical defense posed by 33 USC 905 in view of its warranty of workmanlike service, thwarting’ a recovery under the General Maritime Law and by appealing the Deputy. Commissioner’s ruling is avoiding payment of compensation. The remedy of com- pensation for the time being is an empty promise. REASONS FOR GRANTING THE WRIT This case presents a novel theory of first impression as applied to this body of the Maritime Law which should be decided by this Court: The allowance of the suit to be maintained would permit substantial justice. between the parties and allow the petitioner to assert the same remedy which he could assert against the vesselowner if he were able to get the vesselowner in the Courthouse. The only basis for the Motion for Summary Judgment by the Trial Court was that 33 USC 905 precluded the bringing of the suit. This Court refused in Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124, p. 131; 76 8. Ct. 232, p. 236, to apply a literal reading of Section 33 USC 905 and held that 905, supra, did not apply to the warranty of work- _ manlike service which the stevedore owed the vesselowner. This Court recognized in Ryan, supra, that the stevedore upon going aboard the vessel owed a different duty to the vesselowner than it did to its employee. Petitioner has Sued upon that duty owed by respondent to the vesselowner, not the duty owed by respondent to petitioner as its em- ployee. Having already held in Seas Shipping Co. v. Sierac- ki 378 U.S. 85; 66 8. Ct. 872, that the vesselowner owed the warranty of seaworthiness to longshoremen historically performing the service of the vessel, this Court in order to achieve substantial justice between the stevedore employer and the vesselowner held in Ryan, supra, that the Stevedore owed the warranty of workmanlike service and if such breach of warranty of workmanlike service caused injury - to the employee of the stevedore, that notwithstanding 33 USC 905, any recovery that was by the employee of the stevedore under such circumstances as in Ryan, supra, to- gether with the cost of defense would have to be paid as an indemnity by the stevedore. In Crumady v. Joachim Hen- drił Fisser, 358 U.S. 423, p. 429; 79 S. Ct. 445, p. 448, this Court recognized the law of third-party beneficiaries as the modern interpretation of the law to achieve justice was applicable and would be applied to a maritime cause of action and allowed a recovery where the breach of warranty brought the unseaworthy condition into play. See also _ Waterman Steamship Corp. v. Dugan d McNamara, Inc. 364 U.S. 421, p. 424; 81 8. Ct. 200, p. 202. This Court in Reed v. Yaka, 373 U.S. 410; 634 8. Ct. 1349 refused to follow a literal reading of 33 USC 905.where the stevedore appeared in the dual capacity of stevedore and vesselowner and in Jackson v. Lykes Bros. 8.8. Cor, Inc., ..... U.S.; 87 8. Ct. 1419 decided May 8, 1967, reiterated its position that where the vesselowner acted not only as a vesselowner but as an employer of longshoremen, that Seetion 905, supra, provided no defense to the cause of action for damages based on the warranty of seaworthiness. In Italia Societa v. PPE CORE a IO " — — ä — — — Oregon Stevedoring Co., Inc. 376 U.S. 315; 84 S. Ct. 748, Footnote No. 6, it held that if the stevedore was liable in warranty for creating. an unseaworthy condition causing injury, 905, supra, was no bar to a recovery by the shipown- er and in Pacific Inland Navigation Co. v. Course, 9th Cir. 368 Fad. 540, eertiorari denied, the 9th Circuit on page 542, . . . . In Ryan the imposition on the employer of the economic harden of its employee's recovery for unseaworth- iness was allowed notwithstanding the provisions of P. 905. This result, however, was justified upon the ground that by its warranty to the shipowner thé employer took upon itself not only its limited obligations to its employee under the Act, but the obligations of the shipowner as well.” See also, the 9th Circuit Opinion of Seattle Stevedoring Co. v. Compania Maritima & Maritime Co. of the Philip- pines, 373 F2d. 9, p. 11, “. .. . Since Italia Societa de Nawe- gacion v. Oregon Stevedoring Co., Inc., 376 U.S. 315, 84 8. Ct. 748; 11 Law Ed. ad 732 (1964), there can be no reason- able doubt that the stevedore’s implied warranty to the ship- owner is governed by the same standard as and is co-exten- sive with the shipowners’ obligation to seamen and others of that category...” . Under the restatement of the law of contracts [paragraph 133], petitioner would be a third- party beneficiary of the stevedore’s warranty of workman- like service for the vesselowner was obligated to comply with the maritime law relating to seaworthiness and in this ease, the vessel was rendered unseaworthy or its unsea- _ worthiness was brought into play by the stevedore’s breach of its warranty of workmanlike service which caused a breach of the vesselowner’s warranty of a seaworthy vessel. The Admiralty Court is bound by its nature and Constitu- tion to give judgment upon equitable principles according to the rules of natural justice, see Benedict on Admiralty, Pol. I, p. 151 citing d. v. Cornell ee Co., 202 7 V. S. 84, 50 Law Ed. 987, 26 8. Ct. 648, and The Kalfarli 277 F 391 2nd Cir. It is a Court of Justice .... See Benedict on Admiralty Vol. I., supra, paragraph 715, p. 151, supra, |; citing Andrews v. The Essex Fire and Marine Insurance Co., (1822), 3 Mason 6 F. case 374 Cir. Ct. of Massachusetts. The rulings of the courts below ignore and refuse to follow this Court’s precept that Section 33 USC 905 is not an all inclusive bar to a recovery by the injured longshoreman but that the bar stated therein depends upon the eireum- stances. Petitioner's suit was not brought upon a duty owed by respondent to petitioner as its employee, but to repeat, it was brought as a third-party beneficiary. to his employers’ warranty of workmanlike service or.as the equitable owner of the shipowner’s right to indemnity resulting from the respondent's breach of its duty to the vesselowner to per- form its work in a workmanlike manner resulting in the unseaworthiness of the vessel causing his injury which ne was a breach of duty owed by the shipowner to the petition- er. Petitioner was the equitable owner of the shopowners’ right to indemnity, see; Davis v. Dittmar, 2nd Cir. 6 F2d. 141. Under the circumstances, petitioner submits that the lower court’s ruling is contrary to this Court’s previous rul- ing in spirit, that all longshoremen should be treated equally under the eyes of the law because equality of treatment under the decisions of the lower courts would depend in cases where the breach of warranty of seaworthiness is caused or brought into play by the stevedore’s breach of warranty of workmanlike service upon the fortitious cir- _ cumstance of the financial stability of the vessel owner (number of vessels operated, etc.) and the opportunity: of the injured longshoreman: to get the vesselowner into the courthouse even though the vessél owner would be entitled to indemnity from the stevedore employer under Ryan, supra. Sa ad reer 8 CONCLUSION For the foregoing ‘reasons, this petition for writ of cetiorari should be granted. | ; 5 Attorney for Pe | as of 5 N AuLEN, TayLor & Zoounmns Houston First Savings ae Building, : Houston, Texas . “Wty 7 7 v, ; 44... 41606 4 1 N Ayl Building, Houstén, Texas 77002 : CA 3-4601 PROOF OF SERVICE. I, BILL ALLEN, attorney for petitioner and being a member of the Bar of the Supreme Court of the United States, hefeby certify that on this day I served copies of the foregoing Petition for Writ of Certiorari upon Mr. Carl O. Bue, Jr., Royston, Rayzor & Cook, counsel for respondent, by mailing three copies thereof postage prepaid, addressed to his office at 877 San Jacinto Building, Houston, ' J ‘ In TRR UNITED STATES COURT OF APPEALS LOS For TRA Firra Cmourr No. 2.3 579 | — 4 - Berream A. Watson, — 7 F rine a ipieaee a least sal a | ; f 2 f 8 V. ° 955 Guræ Srevepore Corporation, _—j ae Appellee. * * Appeal from the United States District Court for the : Southern District of Teras 7 ° (March 28; 1967.) Before HUTCHESON, GEWIN and COLEMAN 5. ö Circuit Judges. dn e es es, HUTCHESON, Circuit Judge: The question presented is whether a libel for damages may. be brought by a long- shoreman-employee directly against the employer-stevedore despite the exclusiveness of liability provision of the Long- shoremen’s and Harbor Workers’ Compensation Act. The . district court answered this question in the negative and accordingly granted a summary judgment in favor of the employer-stevedore.“ We affirm. * 33 U.S. O. Sec. 905, which provides in pertinent part: 0 ke liability of an employer [for compensation} shall be exclusive and in place of all other liability of such employer to the employee . . and anyone otherwise entitled tõ recover damages from such employer at law or in admiralty on account or such injury or death. . 2257 F. Supp. 503 (S. D. Tex. 1965). 2a Ihube libellant Watson, a enen ge age e Fele pellee Gulf Stevedoring Corporation, injured while handling cargo aboard the SS SAN DIMITRIS in Houston, ; Texas. It is ‘important that the eniployer occupied solely. oe the position of a shoreside stevedoring company having no ownership or operational interest in the vessel. The em- : ployer-stevedore’s contract was with Luria Bros., a cargo owner and space charterer, rather than with the vessel owner. Libellant declares he was unable to bring the libel against the vessel or vessel owner because the vessel has changed ownership and names several times since the in- jury, and, in addition, has been broken up. Instead, he filed this libel against the employer-stevedore in personam on August 1, 1963, approximately six years after the accident happened on February 6, 1957. The obstacle, which we hold to be insfirmountable, i in the path of this libel is 33 U.S.C. Sec. 905 which states in part that the liability of an employer for compensation. “shall be exclusive and in place of all other liability of such em- ployer to the employee . . . on account of such injury ... .” Although this section deprives employees of certain a mon-law rights and thus the hance to obtain large tort verdicts against their employers, it in turn grants them the quid pro quo-of assured compensation. On the other hand, while the employers are required to pay compensation regardless of fault, their benefit is the certainty of limited liability.“ But it is to be remembered that the employee’s right of recovery is limited by Sec. 905 only as against the employer; the employee remains free to sue nonemployer third parties for damages. See Seas Shipping Co., Inc. v. Sierachi, 328 US. 85, 101-102 (1946) ; 33 U.S.C. ea 933. 4%. i — — 9 9 The theory of the libel before us is based upon settled : principles. The vessel owner owes to the longshoreman the nondelegable obligation to maintain a seaworthy vessel > henee, the longshoreman may sue the ve: owner in personam or the vessel in rem for injuries caused by un- seaworthiness. Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 424 (1960); Seas Shipping Co., Inc. v. Sieracki, supra. Furthermore, the stevedoring company impliedly warrants that it will perform its steve- doring services in a workmanlike manner; thus the steve- dore must indemnify the vessel owner for damages paid to the longshoreman when a breach of the warranty of work- manlike service brings into play the vessel’s unseawor- thiness.* Using those established principles as a platform, -libellant urges two contentions on which he attempts to sue the employer-stevedore directly: first, that the long- shoremar is a third-party beneficiary of the warranty of workmanlike service; second, that the longshoreman is the equitable owner of the vesel owner's claim for indemnity against the. stevedore. : : Both contentions assume the vessel’s unseaworthiness which present law permits to be adjudicated only in an action against the vessel or its owner. To allow an adjudi- cation of unseaworthiness in a libel by a longshoreman against the employer-stevedore plainly would destroy Sec. 905. It is true that both the vessel and its owner are regarded as third-party beneficiaries of a stevedoring con- tract between the stevedore and someone other than the vessel owner, such as a charterer* or a consignee® of the Italia Societa v. Oregon Stevedoring Co., Inc., 376 U.S. 315 (1964) ; Crumady v. The J. H. Fisser, 358 U.S. 423, 429 (1959) ; Ryan Stevedoring Co., Inc. v. Pan-Atlantic Corp., supra note 3, at 132; Waterman Steamship Corp. v. David, 353 F. 2d 660, 661-62 (5th Cir.), cert. denied, 384 U.S. 972 (1966). 2 5 Crumady v. The J. H. Fisser, supra note 4, at 428. N Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 424-25 (1960). a : cargo.’ But there ts no authority either that the longshore- , man is similarly regarded' or that he is the equitable — owner of the indemnification claim. Refusing to overlook the clear language of Sec. 905, we hold that this employee’s sole and exclusive erer, if any, is en the vessel owner.“ Reed v. The Yaka, 373 US. 410 (1963) aie is dis- tinguishable from the instant ease. There the Court held that the employee: could maintain a libel for damages against h his is employer’ because the employer also happened to be the bareboat charterer, or owner pro hac vice, and as such was liable for unseaworthiness.!° Here, however, the stevedore, who had no operational interest in the vessel, was not charged with the obligation of seaworthiness. | We conclude that the district court was right in holding that this Abel! is abend by Sec. 905. The judgment is ; : . 7 This is because the warranty 1 saa id e c to the contract or not.” Crumady v. The J. H. Pisser, supra E ee e e clare ; was cargo owner rather than by the vessel owner 5 8 See Ferrigno v. Ocean Transport Ltd., 309 F. 2d 445 (2d Cir. 1962); Sanderlin v. Old Dominion Stevedoring Corp., 261 F. upp. 281 (E.D, Va. 1966). whether the vessel’s owners are = \ \ \ \ a ie ae ae * Accord, Rodgers. Baltimore & Ohio RR. 323 F. 2d 996 (2d . ag age ge U.S. 932 (1964); Kyles v. James w “Blwéll & Co., 296 F. 2d 703, 706 (7th Gir. 1961), cert. denied, 369 U.S, 652 (1962) } Thibodeaux v. J. Ray McDermott . ); Garland . The 8.8. Illiamna, 198 F. 187 5. Aua 1981); ; Skow v. N Carrier, Inc., 164 Sapp, 281 N. D. ). ales Grace Line, Ing v. 366 V. 2 510 (9th Cir. * ‘ 5a APPENDIX B 3 InToze - “UNITED STATES COURT OF APPEALS: ‘Fos Tae Fires, ee, „ 92 ce Vo. 23579 BrRTRAM A. Warsox, : ' Appellant, Wes ; nya Gur Srevepore Corporation, —=_—swi«w ; d Appellee. ‘ * 1 from the United States District Court for the Southern District she Texas. (™~ (May 8, 1967) ; On Petition for Rehearing | Before HU TCHESON, GEWIN and COLEMAN, Cirouit Judges. . PER CURIAM: It is ORDERED that the petition for 1 in the above entitled and number cause eee and it is ez bu ora : 6a : 3 2 ‘APPENDIX 0 ü I TR UNITED STATES DISTRICT. COURT - Ven Tae Scovanke Diderot Or Texas Houston Division eit 8 f Bertram A. Watson, 3 5 Libellant v. 8 Gur Srevepore Conpomatzom, 8 N 2 5 ERNespondent A. D. NO. 63.-H- 1! W. Jus Roszrts of Houston, Texas; 4 8 Proctor for Libellant. ne : Royston, Bayzor 4 Cook (Cant O. Buz, Jz.) of Houston, Texas; Proctor for Respondent. December 28, 1965 ‘Memorandum and Orie of Dismissal: Petitioner longshoreman, while in the employment of the Respondent stevedoring company, was injured while work- . ing aboard the SS SAN DIMITRIS in February of 1957 in the Port of Houston, Texas. 0 a 5 * — eamaapeagnnenumnyemneaiios — — * 288 . „ — — — —— . 1 1 I —— the theory that he is the third-party beneficiary. of an 155 implied warranty by Respondent to the vessel owners that it would perform its stevedoring duties in a workmanlike manner with its failure to do so rendering the vessel unsea- worthy. This suit is brought notwithshanding the exclusive i liability provision as against an employer in the Longshore- men's and Harbor Workers’ Compensation Act, Section 905 of Title 33, USCA, which it i s not ee is other- wise applicable. Petitioner relies upon the doctrine in Reed v. The Yaka, 373 U.S. 410, and upon an extension of the principle that a vessel owner has a right of indemnity as against a steve- doring contractor for its breach of warranty. Ryan Co. v. Pan- Atlantio Corporation, 350 U.S. 124 and Waterman Steamship Corporation v. Dugan and McNamara, Inc., 264 US. 421. See also Italia Societa v. Oregon Stevedoring Co. 376 U.S. 315. But no authorities are cited nor can any found that extend either proposition to the length s~ pen here. This case involves no prior adjudication of thy vessel’ liability for unseaworthiness. The Taka clothes a longshoreman # inivr: . abroad a p-. ticular vessel (emphasis added through it) with the stat us ok a “seaman” insofar as his right sue the vessel for in- Seaworthiness is concerned n>iw’.ustanding the exclu ive remedy provision of Sectica . In respect to instant case, it is only incidental ‘uat i+ Ze Yaka the longshoren an's employer was also the .wner of the vessel pro hoc vice. The record shows th: Respondent in instant case hid no relationship with vessel other than as a steve- dore.. Petition s reliance on a third-party right of indemnity is equ’'iy untenable. It would direetly contradict and frus- * ̃ꝗ—DU——F—F̃ccGʒ — — — * 1 8a trate the purpose of Section 905. This right of indemnity inures to the benefit of the innocent vessel owner where her unseaworthiness is caused by the employer's breach of warranty. It would be another thing to say that it negates the protection which the employer has under the compen- sation act in respect to an in nn,, action by a long- shoreman. 5 For the foregoing reasons, the ‘Respondent's Motion to Dismnss is granted. It is hereby ORDERED, ADJUDGED and ‘DECREED that this 124 is dismissed with prejudice and Libellant i to pay costs. The Clerk will notify proctors. /s/ ALLEN B. HAN NAX United States District Judge Ga. aoe APPENDIX D § 905. Exclusiveness of Liability The liability of an employer ee 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, dependents, 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 pay- ment of compensation as required by this chapter, an in- jured employee, 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 i injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee. Mar. 4, 1927, c.- 509, § 5, 44 Stat. 1426. / — OO ILO IN EGE A PIES IG Iba APPENDIX E § 133. Definition of Donee Beneficiary, Creditor _ Beneficiary, Incidental Beneficiary. | (1) Where performance of a promise in a contract will benefit a person other than the promisee, that person’ * except as stated in Subsection (3): (a) a donee beneficiary if it appears from the terms of the promise in view of the accompanying cir- cumstances that the purpose of the promisee in obtaining the promise of all or part of the per- formance thereof is to make a gift to the benefi- ciary or to confer upon him a right against the 9 promisor to some performance neither due nor supposed or asserted to be due from the prom- isee to the beneficiary ; (b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view . of the accompanying circumstances and perfor- mance. of the promise: will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary,.or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations or. by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds; (c) an incidental beneficiary if 8 the facts stated > Clause (a) nor those stated in Clause (b) exist. (2) Such a promise as is described in Subsection (1a) is a gift promise. Such a promise as is deséribed i in Sub- section (1b) is a promise to discharge the promisee’s duty. _ (3) “Where it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee is to benefit a beneficiary under a trust and the promise is to render performance to the trustee, the trustee, and not the beneficiary under the trust, is a a bene- ficiary within the meaning of this Section. wer a (er PELL ELLA, LIL IE RIEL ALI SIS ILENE BL LE OPI ER NE RIS at - = —— lla , APPENDIX F UNITED STATES DEPARTMENT OF LABOR Bureau or Empiovers’ COM NATION _ Eiguta Compensation District In the matter of the Claim for . 4 compensation under the Long-: ; | és . shoremen’s and Harbor Work- ers’ Compensation Act BERTRAM A. Watson Claimant Compensation Order VS. 7 Award of Compensation * a Oase No. 3269-212 Gur STEVEDORE CoRPORATION | may | Texas EmMpioyers’ INSURANCE - ASSOCIATION| _ 1 sue Carrier | Such investigation in respect to the above-entitled claim having been heard as is considered necessary, and | A hearing having been duly held i in conformity with law, The Deputy Commissioner makes the eee: FINDINGS. OF FACTS 1. On 8 6, 1957, the claimant above-named’ was in the employ of the employer above-named at Houston, Texas, in the Eighth Compensation District, established under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act. The liability of the employer for compensation under the said Act was insured by the Texas Employers’ Insurance Association. 12a 2. On the said day the claimant, while performing serv- ioe as a longshoreman for the employer aboard the vessel S/S “San Dimitris”, upon the navigable waters of the United States, sustained injury resulting in disability. He was in the hold cleaning off end of trimming stage and a load of scrap iron was dumped on stage, sliding down onto 805 him, crushing his left leg. Following many operations over a period of several years in an effort to save the leg, eventually it became necessary to amputate it in 1962. 3. Written notice of injury was not given to the employer within 30 days but the employer had knowledge of the injury and has not been prejudiced by the lack of such written notice. The employer furnished the claimant with medical treatment, ete., in accordance with the provisions of Sec- tion 7(a) of the said Act. The average weekly wage of the claimant at the time of the injury was in excess of $81.00 per week, thereby making the maximum provision of $54.00 ‘weekly compensation applicable. He was not, a full wages for day of injury. ‘ . 4. Asa result of the injury the claimant was wholly dis- abled and was paid compensation for temporary total dis- ability from February 6, 1957, to August 10, 1966, less time worked November 21, 1962 to April 7, 1966, 320 weeks at $54.00 per week, $17,280.00, the statutory limitation for temporary total disability or permanent partial disability, and, indeed, paid an amount of $378.00 beyond the stautory limitation, making the total payment of $17,658.00. The claim i is, therefore, made for permanent and total disability. 5. The claimant since the date of the injury and even since the amputation in 1962 continued to be under regular follow-up care by Dr. George H. Lane, orthopedic surgeon. While osteomyelitis developed in the left leg following the injury, for all practical purposes testimony shows the claim- | 13a ant no longer has osteomyeltitis in his system, because the site of the disease has been amputated. This, however, does not preclude the possibility, though slim, it may be, because of the dormant nature of the disease of osteomyelitis. 6. The last operative procedure was in April of 1966 which was for a small ulcer on the head of the stump from the pressure of the prosthesis. This ulcer was excised. There was also involved a superficial. infection: A path- ologist’s report showed chronic inflammatory cells. This - ulcer, therefore, had been present for a long period of time and the infection was all the way through the skin down to the subcuteneous tissues. Testimony of Dr. Lane shows that this ulceration is likely to recur from time to time. : 7. There is no question that the claimant has been totally disabled since April of 1966 and he has been unable to wear his prosthesis since about that time. There is a distinct possibility that further plastic surgery will be required ; perhaps involving shortening of the stump. Inasmuch as the claimant obviously is totally disabled at this time and since April of 1966, it would be speculation on the part of the Deputy Commissioner to hold this condition not to be permanent. The claimant since April of 1966 has been under constant active medical treatment in an attempt to clear 250 the condition of the stump. Dr. Lane testified he had no iden how long it would take to clear up the condition. Definite program is being followed and if the claimant is able at some time in the indefinite future to wear the prosthesis, that is one thing ; if not, ‘further plastic surgery (flapping) will be necessary with the possibility of shortening the stump. 8. One of the main problems is the 8 of the bone of the stump to the skin surface. There is nn if any, pro- tective tissue. PMMA OE AE AGILE LAAN OEE ALLO, oe 14a 5 Dr. Lane also testified that this case is complicated -beyond the extent of most amputees’ conditions. The claim- ant has more problems than the usual amputee by reason of having had cross-leg graft. The cross-leg graft was done prior to the amputation of the leg, in an attempt to save it. By reason of this plastic surgery method, the claimant’s right, or remaining, leg has disminished sensation, fre- quently aches, cramps and swells. The right leg feels dead and cramps after the claimant walks a distanee of approxi- mately two or three blocks. He is then forced to rest in order to relieve the cramping. The leg also cramps when the claimant is forced to be on it for a period in excess of 30-40 minutes. The claimant has sustained significant dis- ability to the right, or remaining, leg. 9. The claimant has a high seniority on the waterfront (gold star button) and was able when he worked from November of 1962 to April of 1966 to obtain key jobs, but found in late 1965 even the inability to perform many of these jobs, such as gang foreman because the job required. considerable walking and some climbing. 10. The claimant has been doing longshore work off and on since 1936. The claimant has an eighth grade educa- tion, was a cook in the U. S. Navy and his other work experience was that of a drag line operator. The claimant is 45 years of age. His mental equipment had fitted him for manual labor only. He cannot return to work as a regular longshoreman and he cannot engage in unrestricted manual labor for any sustained period of time. | 11. It i is well established from a medical standpoint he cannot pass a pre;employment medical examination on the ~~ open labor market for work that requires even moderate Physical exertion, such as prolonged walking or climbing. The disability the claimant sustained as a result of the — — —— iwXĩaaᷓ— 15a injury in question is permanent. He cannot return to the regular work of a longshoreman. 12. The claimant by reason of his injury is unable to perform any kind of arduous labor in that he is unable to perform all of the substantial and material acts of his ‘employment in the usual and customary way. He is also unable to procure remunerative employment at a different g occupation suitable to his impaired capacity. The claimant is not educationally or mentally equipped to perform any work of a sedentary nature. Considering his age, education and prior work experience, the claimant has no wage earn- ing capacity on the open labor market. He has, in essence, | suffered a total loss of whatever wage earning capacity he had at the time of his 1957 injury. The total loss of wage earning capacity that he had at the time of the 1957 i * was caused solely by such injury. 13. Prior to the i injury of February 6, 1957 the — sustained a right shoulder injury in 1953. In August of 1965 the claimant sustained an injury to the groin area which resulted in the surgical removal of his right testicle. Although at the time of the 1953 injury when a suit was brought it was alleged and found that he had permanent disability to his right shoulder, the claimant, in fact, has fully recovered from any residual of that injury. The claimant testified that he had fully recovered and examination at the hearing showed a full range of motion in the shoulder and no residual disability. The claimant also testified that the residual of the 1965 groin injury does not affect his capacity to work and the insurance carrier and the employer produced no evidence to the contrary. Neither. the 1953 nor the 1965 injuries contributed in any way to the claimant’s present total disability. Neither of these two injuries relate to his general efficiency and they have no relationship whatsoever to his total ee ¢ 14. The 4 has been wholly disabled since agit 8, 1966 to the present time and it is found that the disability due to the injury was total and permanent and he is entitled to compensation at $54.00 per week without limitation as 16a to total amount as provided by Section 14 (m) of the Long- shoremen’s and. Hasbor Workers’ Compensation Act. The employer and the insurance carrier have paid 7 weeks’ compensation at $54.00 per week, $378.00, beyond the statu- tory limitation of $17 280.00. Compensation has in effect been paid through August 10, 1966. : 15. The insurance carrier should continue to provide any medical care that the claimant requires. Upon the foregoing findings of fact the W Commis- sioner makes the falowing | AWARD | The employer, the Gulf Stevedore Corporation, and the insurance carrier, the Texas Employers’ Insurance Asso- ciation, shall | pay to the claimant compensation as follows: For temporary total disability from February 6, 1957 to December 7, 1966, less time worked November 21, 1962 to April 7, 1966, 344 weeks at $54.00 per week, 818,576.00. The employer and the insurance carrier having paid $17,658.00 to the claimant as compensation shall pay forth- with $918.00. Subsequent to December 7, 1966, they shall continue to pay compensation. for permanent and total dis- : ability i in bi-weekly installments at $54.00 per week until. the death of the claimant or er order of the Deputy: Commissioner. : An attorney’s fee of $684. 87 is approved i in favor of W. J iles Roberts, Attorney, for services rendered on, behalf of the claimant $(284.87 of whieh is for Zeroz copy of Methodist Hospital record, photostats, photographs, U. S. 2 . : 17a Marshal's nad witness fee and review ef Methodist Hos: pital chart), such sum to be a lien upon and be paid out of this award. Given under my hand 2 * at Gatvasten, aire adi on this 8th day of December, 1966. 56e R. J. Kia, R. J, Shea 15. Deputy Commissioner be _ Eighth Compensation District PROOF OF SERVICE — I hereby certify that a copy of the foregoing compensa- tion order was sent to the claimant, the employer and the insurance carrier at the last known address \of each as follows: By Registered Mail: | Mr. Bertram A. Watson 1 Sige | Gulf Stevedores Corporation : Texas Employers’ Insurance Assn. ‘By Regular M ail: : Mr. W. Jiles Roberts, \ Attorney : Royston, Rayzor & Ok Attorneys Bureau of Employees? Compensation | Mailed: December 8, 1966 | 10633 Flaxman Houston, Texas 77029 Cotton Exchange Building ‘Houston, Texas 77002 338 South Wayside Houstolſ, Texas 77011 617 Americana Building - Houston, Texas 77002. 877 San Jacinto Building Houston, Texas 77002 IU. S. Department of Labor Washington, D. C. 20211 R. J. Sas R. J. Shea f Depaty Commissioner N ry 184 APPENDIX G | Ix TRE UNITED ‘STATES DISTRICT COURT Fon THE SouTHERN Disrator or Tmxas Houston Drvision 2 2 Guur Srrvnbohn 1 AND - Texas. EMPLoYERs’ INSURANCE | AssocfjG n | CIVIL ACTION V. * * R. J. Suma, ea CoMMISSIONER AND Berrram A. Warsow Royston, Rayzor & Cock (Carl 0. Bue, Ir, Log. „ Houston, Texas, attorney for Plaintiffs. Morton L. Susman; Esq., United States Attorney, and Jack Shepherd, Esq., Assistant United States a Houston, Texas, ey for Defendant hea. W. Jiles Roberts, Esq., Houston; Texas, attorney for Defendant ‘Watson. No. 66-H-881 May 2, 1967 bn”. In this action the 2 (Gulf Stevedore Cokporation) and its insurer (Texas Employers’ Insurance Association) seek to have this court review and’ set aside as not in accordance with law a Sompensation order filed before i Deputy Commissioner Shea (the Eighth Compensation _ District) entered December 8, 1966, pursuant to the Long- shoremen’s and Harbor Workers’ Compensation Act, 33 U.S. C. A. §§ 901 et seq. In the questioned order, the Com- missioner found that Bertram A. en the’ — 19a man - claimant, was totally and permanently disabled as re- sult of an injury which he received February 6, 1957. The review of this award under the cited statute is as fixed by the Administrative Procedure Act, 5 U.S. C.A. § 1009. The award is to be set aside only if unsupported by | substantial evidence upon review of the entire record. [O’Leary v. Brown-Pacific-Maaon, Inc., 340 U.S. 504 (1951); Strachan Shipping Co. v. Calbeck, 190 F. Supp. 255 (S. D. Tex. 1961) and cases there cited. r: a The basic facts are essentially undisputed. They are as . follows. | Three distinct i injuries are directly or * involved. The earliest in point of time is an injury suffered by the claimant to his right shoulder in 1953. The i injury was of a serious nature. As result thereof, he made claim under the Texas Workmen’s Compensation Act, alleging perma- nent disability. After. disposition of the pending litigation, the claimant returned to his regular duties and apparently suffered little, if any, disability to the affected shoulder thereafter. At the time of the hearing here in question, he was found to have no disability i in the shoulder. The injury of primary concern occurred February 6, 1957, when claimant received a crushing of his left lower extremity below the knee. A series of operations and other procedures over an extended period were had in an un- successful effort to avoid amputation. Amputation below the knee became necessary, and was performed in 1962. Thereafter he was fitted with a prosthesis and returned to work November 21, 1962. He worked regularly thereafter until April 7, 1966, except for a period of disability caused by the third injury. The third injury occurred. in Pane. of 1965 sili the claimant suffered a fall and a resulting injury to the groin’ . 20a area. He presently has pending in this court a third party ‘action wherein he contends that he suffered heavy money damages as result of disability resulting from this injury. The Commissioner has found that neither the injury in 1953 nor that in 1965 contributed in any way to the claimant’s “present disability. There i is ample support in the. evidence f therefor. Glaimant’s inability’ to work in April 1966 was the direct result of a small ulcer which developed on the head of the stump of his left leg, resulting from the pressure of use of the prosthesis. This ulcer was excised. The condition of the surface of the stump presently is much improved. Ulcera- 8 tion of this character is quite common in case of amputation, Bae and may recur. 5 One of the surgical procedures followed in an attempt to avoid the amputation was a skin graft. Certain skin and ‘tissue was taken from claimant’s right, or donor, leg and grafted upon his left leg. The claimant has testified that he suffers certain cramping or aching in the right leg which ; he feels has worsened in recent months. Two medical witnesses were offered, Dr. George H. Lane, an orthopedic surgeon who had treated claimant since the injury of 1957, and Dr. Sidney Barron Hardy (by deposi- tion), a specialist i in plastic and reconstructive surgery. The + physicians. testified, in summary, that the real source of claimant's difficulty now was the ulcer which had been ex- cised from tlie stump of the left leg; that when the surface _of the stump was sufficiently healed to permit the use of the prosthesis that his condition would be essentially the. same as it had been since the amputation in 1962; that a | definite program of treatment was in progress for this area and that the physicians had every reason to believe their efforts would be successful ; that such difficulties were quite common in similar cases, but that usually when the — — ä — — ‘ ? 21a prosthesis was properly fitted it could be worn and used without great difficulty. As to the conditions of the right leg of which the claimant complained, it was the testimony of the doctors that this was not unusual. It was attributed 2 the fact that the right leg had been used more than it y would by reason of the fact that the claimant had ise on crutches and without benefit of his prosthesis for several months. The right leg was not shown to have any functional disability, although the removal of the skin and tissue was calculated to, and did, result in the loss of some itivity, and resulting numbness at the affected site. he controversy here is this. In the light of such a fac- tual background, is the finding of the Commissioner that the claimant is totally and permanently disabled sustained by substantial evidence. In my judgment, it is not. In Find- ing No. 7 the Commissioner points out that claimant has been totally disabled since April 1966; that there is a dis- tinct possibility that further plastic surgery will be re- quired. These findings are amply supported. But the con- clusion, “Inasmuch as the claimant obviously is totally disabled at this time and since April of 1966, it would be speculation on the part of the Deputy Commissioner to hold this condition not to be permanent” is completely un- warranted. The record as a-whole shows that the present condition which has rendered claimant unable to work is a temporary one which the physicians fully expect to cor- rect. Granted that this or some similar difficulty may recur, in the great . of cases remedies and cures are found. As noted, 3 worked 8 as a longshoreman from 1962 until April 1966. It is undisputed that during this interval he received favored treatment at the hands of the employer and of his associates. He was assigned to —— — —— 22a supervisory-type work requiring a minimum of walking or other physical effort. By reason of his seniority, in excess of 25 years on the docks, he was entitled to such considera- tion, although he has testified that he was unable fully and adequately to perform even these lighter duties. The claim- ant is 45 years of age. He has an eighth grade education and has some prior experience as a cook and as a dragline operator. The Commissioner finds that he cannot return to regular work as a longshoreman and that he cannot engage in unrestricted manual labor for any sustained period of time. These findings find support in the evidence. But the further finding that claimant cannot pass a pre-employ- ment medical examination“, in my judgment, is not war- ranted. The physician suggested a number of lines of work which claimant might follow. The fact that he may no longer perform the most arduous types of physical labor does not mean that he is totally and permanently disabled. The Act defines disability“ as “incapacity because of in- jury to earn the wages which the employee was receiving - at the time of injury in the same or any other employment. IJSec. 2(10)] (Emphasis added.) He has never sought to secure, or perform, any work except longshore work since his injury. It is rank speculation to hold he cannot, without at least an effort. The award of the Deputy Commissioner will-be etijoined ; and set aside. Clerk will furnish counsel a copy hereof. Counsel will prepare and submit an appropriate decree. Done at Houston, Texas this 2nd day of May, 1967. /s/ Bern C. Connatiy United States District. Judge 23a APPENDIX KR In THE -UNITED STATES DISTRICT COURT For Trae SOUTHERN Disraict or Texas Houston Division Gur STeveporE CoRPORATION AND Texas EMLO VERS INSURANCE — Plaintifs | CIVIL ACTION vs. > 7 ; R. J. 8 Deputy Commassionzn, No. 66-H-881 ) AND BERream A. Watson, Defendants J FINAL JUDGMENT The above numbered and entitled cause having been sub- mitted upon the pleadings and briefs of the respective parties, argument of counsel, and the transcribed record of the hearing held by Deputy Commissioner R. J. Shea prior to the issuance of the COMPENSATION ORDER — AWARD OF COMPENSATION dated December 8, 1966, and the Court, having considered the pleadings, the trans- cribed record, briefs of the respective parties and argu- ment of eounsel and after due deliberation, being of the opinion that it has jurisdiction herein by virtue of 33 U.S. C. A. Sec. 921(b), that the COMPEN SATION ORDER — AWARD OF COMPEN SATION to the Defendant, Bert- ram A. Watson, in CASE NO. 3269-212 by the Defendant- Deputy Commissioner R. J. Shea of December 8, 1966, is not supported by reliable, probative, and substantial evi- dence in the record as a whole and therefore is not in accordance with law and that said COMPENSATION ORDER — AWARD OF COMPENSATION should be set aside and held for naught and its enforcement enjoined for 24a the reasons set out in the Court's findings of fact and con- clusions of law contained in its written opinion of May 2, 1967, on file herein, now, therefore it is ORDEBED that the findings of fact and conclusions of law, dated May 2, 1967, contained in the Court’s opinion of the same date and heretofore filed by the Court, be con- firmed and adopted as the Court’s findings of fact and con- clusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure; and it is further ORDERED, ADJUDGED and DECREED that the COM- PENSATION ORDER — AWARD OF COMPENSATION to the Defendant, Bertram A. Watson, in CASE NO. 3269. 212, dated and filed by the Defendant-Deputy Commissioner R. J. Shea on December 8, 1966, be and the same is hereby set aside and held for naught because it is not supported. by reliable, probative, and substantial evidence in the record as a whole and therefore is not in accordance with law; and it is further ORDERED, ADJUDGED and DECREED that the De- fendant R. J. Shea, Deputy Commissioner, Eighth Compen- sation District, and his successors: (if any), and the Defend- ant, Bertram A. Watson, each be and the same are each hereby ‘permanently enjoined and restrained from, directly or indirectly in any manner, enforcing or attempting to enforce against Gulf Stevedore Corporation, Employer, and Texas Employers’ Insurance Association, Insurance Car- rier, the COMPENSATION ORDER — AWARD OF COM- _ PENSATION to the Defendant, Bertram A. Watson, in CASE NO. 3269-212, dated and entered by the Defendant- Deputy Commissioner R. J. Shea on December 8, 1966. SIGNED and ENTERED at Houston, Texas, this the . day of May, 1967. : TO /3/ BRN 0. nnn . 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