Brief in Opposition to Petition for Writ Certiorari — Garrett v. United States

aie

INDEX

Statement of the Case .............. "ty

Opinions Below ......... ena nee

Question Presented ......... heer tas ;

Argument and Authorities In Opposition —

A. Preliminary. Assumptions of Fact by

- Petitioner in Order to Justify a Suit ©

Directly Against The Employer-Steve-

OK:.,. oR 2: ¥

B. The. Contention That Petitioner Is A’.

Third Party Beneficiary of hice Steve-

yr eee oe =

C. The Contention That ‘Petitioner Is An .

Equitable Owner and Beneficiary of the ©

Shipowner’s Claim To Indemnity. .

D. The Contention That Petitioner’s Legal

S <<

Status Renders Inapplicable Title 33

US.C.A., Sec. 905 of The Longshore-

_ men’s & Harbor Workers’ Compensation

— cleus cewteerees pee aue ews bie 4

Appendices:

A.

B. Court of Appeals Opinion®.........

C. Denial of Petition For Rehearing .

D. 33 U.S.C.A., Sec. 905 of par ea

men’s & Harbor Workers’ Compensa- -

ME NS. Geo «tea kane a nha a ta

a)

ue of

11,

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TABLE OF AUTHORITIES

CASES Page

Crumady v. Tie JOACHIM HENDRIK FISSER,

358 U.S. 423, 3 L. Ed. ‘2d 413 (1959) . 9,11

'. Ferrigno v. Ocean Transport, Ltd., 309 F.2d 445

. cs ne sn baie BEE wow sa 10

Reed v. Steamship YAKA, 373 U.S. 410, 10

L. Ed. 2d 448 (1963) ...........: 3, 4, 8, 13, 14, 15

Ryan Stevedoring Company v. Pan Atlantic ~

Steamship Corporation, 350 U.S. 124, 100 ©

L. Ed. 133 SEES si sini « nding adn ewa ees 4,9

Sanderlin v. Old Dominion Stevedoring Corpora-

.tion, 261 F. Supp. 281 -(E.D. Va. 1966) . 10

‘Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90

awe 13,14.

Waterman Steamship Corporation v. David, 353

moe kU rrr rer 7

Waterman- Steamship Corporation v. Dugan &

McNamara, Inc., 364 U.S. 421, 81 S. Ct. 200,

5 L. ‘Ed. 2d 169 ES aA Ne ep 9, 10, 11

or STATUTES .

Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 33 U.S.C.A., Sec. 905; 33 U.S.C.A.,

Sec, 933- Peach a area 1, 3, 4,5, 6, 8, 13, 14, 16

a "LEGAL PUBLICATIONS | ,

Restatement, Law of Contracts, Section 133 .... 1!

IN THE

Sines Court of the Ruited Stairs

October Term, 1967

NO. 472

\B. A. WATSON, Petitioner

v,

GULF STEVEDORE CORPORATION, Respondent

RESPONDENT’S REPLY IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

' This Petition’ for‘Writ of Certiorari, though disarmingly

simple on its facts, can have incalculable repercussions

on the relevant law if Petitioner’s position prevails. In

effect, it is a concerted effort by the Petitioner-longshore-

man to reshape the law so as to eliminate the basic quid —

pro quo of compensation law as well as the exclusiveriess

of liability provisions of the Longshoremen’s & Harbor

Workers’ Compensation Act’ by permitting ‘an action for -

im Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.

C.A., Sec. 905. |

vets a vga IE ALOE IE seam pine sh emcee ehigheuadr eS a CN ee ae ee

——— -@- = .

®

* personal injuries direct against the Stevedore-employer by

the employee. The intent is to directly expose an inde-

pendent shoreside contracting stevedore which has no

connection whatsoever with the vessel to a potential suit

for unlimited damages for personal injuries whenever

Petitioner-longshoreman independently decides short of in-

-stituting legal action against the vessel that the shipowner

would be cast in liability, if sued, and further concludes

that the shipowner would thereafter succeed in its in- —

demnity action against the stevedore. The Respondent, -

Gulf Stevedore Corporation, respectfully submits that such

_ a theory in law as against a shoreside independent con-

+ tracting stevedore is a nullity, that the opinions of the —

Trial Court and Court of Appeals below were eminently

correct and the Petition for Writ of Certiorari should be

denied.

I.

_ STATEMENT OF THE CASE

These are the material facts. Following an accident .

to longshoreman B. A. Watson on February 6, 1957, on

board the SS SAN DIMITRIS in Houston, Texas a libel

was filed on behalf of Watson in the United States District

‘Court for the Southern District of Texas, Houston Division,

on August 1, 1963, somé six years after. the incident

occurred. This libel was filed in personam directly against .

the injured longshoreman’s employer, Gulf Stevedore -

Corporation. In a highly unique series of allegations it -

was alleged that Respondent, Gulf Stevedore Corporation,

‘warranted to the owners and operators of the SS SAN

DIMITRIS that it would perform its stevedoring services

‘ in a workmanlike manner which it failed to do; that as

‘sinks polabsiabcpanlied SRS Se RPE PARA? WR RISES Tr eae ae

se seSntia tested = : ei ahaa nh me Se

3

a consequence such failure brought into play the negli-

gence of the vessel owners and/or the unseaworthiness .

of the SS SAN DIMITRIS, all of which contributed to

Petitioner’s injuries for which the vessel was liable; that

the circumstances: of the accident to B. A. Watson sup-

ported an action for indemnity by the shipowner against.

the Respondent-stevedore and that Petitioner-longshoreman

‘as ‘a beneficiary of. such stevedore contract and as equi-

table owner of the shipowner’ s right to indemnity therefore

was able to bring suit directly against his employer, Gulf

Stevedore Corporation. In conclusion,- Petitioner urged.

that the then recent decision of the United States Supreme

Court, Reed v. Steamship YAKA,” opened up this new

avenue Of recovery direct against the employer-stevedore

and that Sec.. 905 of the- Longshoremen’s & Harbor

Workers’ Compensation Act® pertaining to the exclusive-

ness of liability of the employer no. longer retained any

vitality in this factual context.

Respondent-stevedore’s Motion for Summary. Judgment

and/or Dismissal was filed on August 28, 1964, to which

‘ was attached an affidavit of Joseph M. Raspino, Assistant —

‘ Secretary and Treasurer and an officer of Gulf Stevedore

‘ ° Corporation which affirmed that Respondent had no

ownership or operational interest in the SS SAN

DIMITRIS or any other vessel at any time and was

solely an independent contracting stevedore; that the

oral contract to load cargo on the date of the ac-

cident was with. Luria Bros., the owners of the

cargo and a time or space charterer of the’ SS SAN

DIMITRIS, and not with the vessel owners. These mat-

(1963). -

3. Title 33 U.S.C.A,, Sec. 905.

2. Reed v. ‘Steamship VAKA, 373 US. 410, ” L. .Ed. 2d 448

xe Fe TEN, PAE EEE RORY Te pirecsataiiat SEOLS: ees Dt id sdhashiiahe walla pecans aemciass westtht ” is sien

WR tats rs : Pp —

4

ters are uncontested. Additionally, the Motion for Sum-

mary Judgment and/or Dismissal urged the applicability

of Section 5 of the Longshoremen’s & Harbor Workers’

Compensation Act, denied the application on these facts

Of Reed v. Steamship YAKA,* as well as the theory of .

legal indemnity under Ryan Stevedoring Company v. Pan

Atlantic. Steamship Corporation.’ In conclusion, Respon- -

dent urged that Petitioner had fashioned a non-existent

theory of liability in order to circumvent the prosecution

of a third-party action against the vessel and/or its owners

or operators: by violating a specific statutory prohibition

against suing one’s employer* when such accidents were

clearly, covered by the Longshoremen’s am Harbor

Werke gest ccvsy Act.

Il,

‘OPIN IONS BELOW

‘The Trial Court had no difficulty in immediately per-

ceiving the true significance of this suit and granted

: Respondent's Motion to Dismiss. The District Court’s

opinion is found in 257 F. Supp. 503 (S.D. Tex. 1965)

and is set forth in Appendix A. Following Petitioner’s

appeal -to the United States Court of Appeals for the

. Fifth Circuit, that Court also realized that to permit a

_ longshoreman to pierce the exclusiveness of liability - pro-

visions of the Longshoremen’s & Harbor Workers’ Com-

4. Reed v. Sténtnahip VAKA, 373 US. 410, 10 L. Ed. 2d 448

(1963).

5. Ryan Stevedoring Compan pany v. Pan + ‘Aeieatl Steamship Cor-

. poration, 350 U.S. 124, 100 L. Ed. 133 (1956). ;

6. Title 33 U.S.C.A., Sec. 905. '

5

pensation Act’ under these facts’ would result in the

. complete destruction of the purpose of this Act as well

as that of compensation acts in general. The Circuit

Court opinion jhg the Trial Court is reported in

374 F.2d 946 ir. 1966) and is set forth in Ap-

pendix B. Jie denial of Petitioner for Petition Re-

hearing is” eported to date, and is set forth in Ap-

. pendix C. : ies ahs Oa oe

IIT.

QUESTION PRESENTED

; The question which emerges and which the lower courts

have properly decided adversely to Petitioner is this:

CAN A LONGSHOREMAN-EMPLOYEE BRING .

SUIT. FOR UNLIMITED DAMAGES IN’ PER-

SONAM AGAINST HIS EMPLOYER, AN IN-

DEPENDENT CONTRACTING STEVEDORE,

DESPITE THE EXCLUSIVENESS OF LIABILITY

~PROVISONS OF THE LONGSHOREMEN’S & .

HARBOR WORKERS’ COMPENSATION ACT

(TITLE 33 U.S.C.A., SEC. 905). | :

‘We respectfully submit that the answer is no, that, both

the District Court and the Circuit Court were correct

in dismissing the suit as lacking a valid basis in law and

that the Petition for Writ of Certiorari should. therefore —

be denied. :

- 4

7.. Title 33 U.S.C:A., Sec. 905.

6

IV.

-ARGUMENT AND AUTHORITIES IN OPPOSI-

TION TO PETITIONER’S EFFORTS TO. PROSE-

CUTE A LONGSHOREMAN-EMPLOYEE’S SUIT

FOR UNLIMITED DAMAGES AGAINST . HIS

EMPLOYER, AN INDEPENDENT CONTRACT-

ING STEVEDORE, DESPITE THE EXCLUSIVE-

NESS OF LIABILITY PROVISIONS OF THE

LONGSHOREMEN’S AND HARBOR WORKERS’

COMPENSATON ACT (U.S.C.A. 33, SEC. 905).

A.

- Preliminary Assumptions of Fact

By Petitioner In Order To Justify A Suit

Directly Against the Employer-Stevedore

In both the Trial and. Appellate Courts, Petitioner has .

urged that this suit is a novel theory of first impression. ~

Rather than permit any impression to remain that such

a theory is meritorious and supported by sound legal

principles, Respondent has consistently felt obligated be-

' fore the Courts to analyze each element of Petitioner’s

_.thesis in order to insure that there can be no question

as to what is being attempted and why it is unsound in

law. Despite the somewhat obscure and commingled bases

of legal recovery urged by Petitioner in this case, cer-

tain features stand out. In order to reach the desired —

result, Petitioner must assume a number of matters which

have not been proved, much less alleged in a suit against

the vessel, as well as assume matters which are unsup-

portable in law short of prosecuting any legal action

rr oe oepereee ee ee Pe It has

been nw assumed:

7

(1) The vessel is unseaworthy and its owners are cast

in liability.

(2) The owners of the alleged unseaworthy vessel who

are not a party to this suit are entitled to indemnity

over against the Respondent-stevedore which

breached its warranty of workmanlike service to

the shipowner. :

With Petitioner’s legal hypothesis commencing by rest-

ing on these unproved assumptions,’ the liability issues

of the potential third party suit against the SS DIMITRIS

are resolved without the vessel or its owners ever being

sued and before any facts’ are proved.

Having independently affixed vessel liability and per- .

mitted indemnity over, Petitioner then assumes further’

matters in law in fashioning this singular legal theory —

on which to base .a suit direct against the stevedore-

employer. Yet, even if Petitioner is given the benefit of

the doubt as to fact issue 1 and as' to fact issue 2, (which

is, at best, precarious in the Fifth Circuit in view of

Waterman Steamship Corporation v. David,* on ship con-

duct which precludes indemitity) the following assump-

tions in law by Petitioner are wholly unsupportable:

(3) Petitioner occupies the same position as a vessel

.. and is thus a third-party beneficiary of a contract

between the space charterer and ° Respondent.

‘» stevedore.

(4) Petitioner is an equitable owner and beneficiary

of the shipowner’s claim for indemnity over against :

the stevedore. |

8.. Weteane Steamship Corporation v. David, 353 F. 2d 660 *

(Sth Cir., 1965). ’ .

¢ 8

(5) Having achieved the legal ‘status described in 3

and 4, supra, the exclusiveness of liability pro-

visions of the Longshoremen’s & Harbor Workers’

Compensation Act’ have no iP YAKA™ to Peti-

* . tioner, and Reed v.. Steamship YAK gt I _Sup-

porting authority. ae

| " Inagmisch as the questions before this Honorable one

are purely ones of law, it is the legal principles which

require’ examination and not particular facts. Whether ©

or not a longshoreman sustained merely a cut finger or -

received fatal injuries as a result of an accident should

have no bearing on a determination of what is a valid

legal theory on which to predicate an action for damages,

‘whether against a third party. or otherwise. We therefore

direct our aftention to legal theories (3), (4) and (5),

mupre, in that order.

The Contention That Petitioner Is A Third Party

Beneficiary of the Stevedore Contract

It is undisputed that the stevedore contract in‘ this

case was not between the Respondent, Gulf Stevedore

Corporation, and the vessel owner. On ‘the contrary,

‘the contract was between the Respondent and Luria

Brothers as space charterer of the vessel. However, .it

~ is not contended by Respondent that’ the question of

- law. before this Honorable Court is significantly altered

by such circumstances. Indeed, the law is clear that the

9. Title.33 U.S.C.A., Sec. 905:

10. Reed v. Steamship YAKA, 373 US. 410, 10 L.- Ed. 2d 448

(1963).

vessel owner is a third-party beneficiary when the steve-

dore contratts for its services with the charterer, Crumady -

v. The JOACHIM HENDRIK FISSER," and that the

vessel owner is also a third party beneficiary when the

_ stevedore contracts for its services with the consignee of

the cargo. Waterman Steamship Corporation v. Dugan

& McNamara, Inc.”

Contrary to. Petitioner’s contention’ that he is a bene-

ficiary of the agreement to load cargo between the steve-

dore and the space charterer, he is nothing of the sort.

The Waterman case" refers to services performed for the

benefit of the vessel owners who have the non-delegable’

duty to fygnish a seaworthy ship. Petitioner occupies |

no such gfatus. The third-party beneficiary theory in.

maritime indemnity cases comes into play when tthe ;

vessel has been rendered unseaworthy or otherwise liable ~

to a party such‘as Petitioner and the shipowner is in turn

seeking indemnity as a consequence of a breach of war-

ranty of workmanlike service by the stevedore. At this

point the body of indemnity law commencing with Ryan

a Stevedoring Company v. Pan Atlantic Steamship Cor- -

' poration," is activated. Yet, in the present case no vessel

liability has been imposed;. in fact, no suit against the |

vessel has ever been filed or attempted since the acci-

dent to B. A. Watson in 1957. The full significance of

11. Crumady v. The JOACHIM HENDRIK FISSER, 358 USS.

423, 3 L. Ed. 24/413 (1959).

12, Waterman. Steamship Corporation v. Dugan & McNamara, :

" Inc.,’364 US. 421, 5 L. Ed. 24 169 (1960).

13. Id.

14. “Ryan Stevedoring Company v. Pan Atlantic Steamship Cor-

! — 350 U.S. 124, 100 L. Ed. 133 (1956). 7

>

y 10 |

the iia owe theory on maritime indemnity .

law-is seen in Waterman Steamship Corporation v. Dugan

& McNamara, Inc., in which it is made ‘only too clear

that the watranty which the stevedore owes when he

goes aboard a vessel to perform services is plainly for

‘the benefit of the vessel..* The importance of the inten-

tions of the contracting parties cannot be over empha-

sized, and whatever limits the zone of modern law recog- '

nizes in third-party beneficiary situations, the intent that .

the vessel owner.or one occupying a similar status benefit

is apparent from the language of Waterman. Similarly,

Ferrigno v. Ocean Transport, Ltd.,’* held that even the

shipowner had a heavier burden to sustain that it was -- .

intended to be a third-party beneficiary in a case in

which the stevedore had executed a written contract with

a charterer’s agent containing a disputed hold harmless

‘clause. See also Sanderlin v. Old Dominion Stevedoring ©

‘Corporation,"wherein the applitation of the third party

- beneficiary theory was rejected in a somewhat different

factual context.

_ In the present case, Petitioner additionally finds ‘hin

self standing in line behind the shipowner in contending

15. Waterman S$ ip Corporation v. Dugan & McNamara,

’ Inc. 364 US. 421, 5 L. aT 2d 169 (1960), wherein the following

. The warranty which a stevedore owes when he goes aboard

a ae to perform services is plainly for the benefit of the

vessel whether the vessel owners are parties to the contract or

not. That is enough to bring the vessel into the zone of modern —

law that third party beneficiaries. Restatement, Law

"of Contracts, 133.” (Emphasis supplied.)

16. ‘Ferrigno v. Ocean ‘Transport, Ltd., 309° F.2d 445 (aa Cir.,

- 1962).

17.. Sonderlin v. Old Dominion Stevedoring Corporation, 261 F.

Supp. 281 — Va. rr

eA TSO AT

as Petitioner suggests.

11

for third-party berbfaclary status, since Luria Bros., the

charterer, had contracted ‘with the Respondent-stevedore -

for stevedore services. Petitioner ‘actually’ seeks for him- —

self a cause of action which has not matured into reality,

since the vessel owner has never acquired such a claim,

not -having been sued, served or cast in liability. Whether .

bottomed on general principles of-‘contract law as con- .

tained in the Restatement, Law of Contracts, Sec. 133,

the ‘spirit of Crumady” or that of Waterman” with its

built-in common sense approach as to who is to benefit,

it strains reality to conclude that the maritime stevedore

employer which’ is legally obligated anyway fo respond

for weekly compensation payments for injuries, death .

benefits and attendant medical expenditures under the

Longshoremen’s & Harbor Workers’ .Compensation* Act

‘when injuries to longshoremen occur would cut away

the very bedrock on which the Act rests bs contracting

C,

The Contention That Reciilanes Is An: Equitable

Owner And Beneficiary of the Shipowner’s

" Inc., nd US. 421

aan t

Claim To Indemnity

Indemnity in law will not arise until the party to ‘be

indemnified sustains a loss. In this instance, this could

occur only if. fact issue 1 were resolved favorably to

Petitioner so that basic vessel liability was imposed for |

unseaworthiness, Such liability cannot be imposed unless

18. Restatement, Law of Contracts, Sec. 133.

19. Crumady v. The JOACHIM HENDRIK aaron 358 US.

423, 3 L. Ed. 2d 413 (1959).

20. Waterman noe Corporation’ \ v. Dugan & McNamara,

5 L 2d 160 (1960). . ;

Pe tm gp Be ort alga ere ae hee hasnatieei sss “emliling tite iis ry areal, sea ms ny

,. »

12

the sole warrantor of a seaworthy ‘ship (the vessel owners

or the ship itself) is sued. No suit has been . brought °

_ against’ the vessel or its owners, so no ship liability can

be imposed. . Without ship liability there can be no loss,

.; and without a loss the vessel and its owners havé no

legal basis or reason to assert indemnity. Thus, the first

point to be made is that this is not a case for considera-

tion of indemnity or indemnity cases. : ;

. The additional position that Petitioner is an equitable

- . Owner and beneficiary of a shipowner’s claim to indemnity

is equally without merit when it is considered that, unless

one indv'ges in Petitioner’s dual factual assumptions in

. 1 and 2 above, it is presumptive to assume automatically

that basic vessel liability exists or that it is necessarily a_

. fact situation for indemnity, Again, if it is assumed that

fact issues 1 and 2 favor Petitioner’s position, Petitioner's

"cause of action for unseaworthiness still must be urged

_ against the ship or the sole warrantor of the seaworthy

' vessel, the vessel owners. -Petitioner has no ownership or

interest, equitable or otherwise, in the vessel owner’s

Claim for indemnity against the stevedore which only —

comes into being after the vessel owner is sued and lia-

bility affixed. Such an indemnity claim ‘itself’ consists

_ primarily of the loss suffered by the vessel owners as a

result of the ship’s unseaworthiness for which payment

has or is being made to the injured party. Having thus

. been paid once by the vessel owners, an injured party

_ Camnot have any interest in the vessel owners’ claim

_ against the stevedore in order to recoup its very loss for

such payment. eps yeeonraes

Petitioner's position that he should be. entitled to

prosecute the claim directly as ‘the equitable owner of the

vessel owner’s Claim encounters multiple hurdles including

_ the question of whether or not there can be a viable claim

13

for indemnity by a vessel owner in which Petitioner can

ever acquire any interest. Apart from other previously

discussed problems, Petitioner’s argument requires that he

, Summarily sidestep any. application of ‘the exclusiveness

_Of liability provisions of the Longshoremen’s & Harbor .

Workers’ Compensation Act." We direct our attention to

_ this Section of the Act. - in: taste? mes

| D.

. The Contention That Petitioner’s Legas Status

Renders Inapplicable Title 33 U.S.C.A., Sec. 905

of the Longshoremen’s & Harbor Workers’

+’ Compensation Act )

~ It would be folly to ignore the possible consequences of

Petitioner’s position if it ever becomes the law. Petitioner -

moves unhesitatingly to engraft onto the rationale of this

case the opinion of Reed v. Steamship YAKA.22 In doing

> +80, it is hoped that once again the same éxclusiveness of

_ liability provisions of the Longshoremen’s & Harbor

Workers’ Compensation Act can be avoided, even though

Respondent-stevedore in this instance has not the remotest

. connection with the ownership and operation of the vessel.

' The short answer to Petitioner’s efforts to employ the

thrust of YAKA is that it has no application to this case.

Reed v. Steamship YAKA was concerned with injuries

_ to a longshoreman employed by a stevedore who was also -

the bareboat charterer of the vessel. As charterer: or

Owner pro hac vice the employer was obligated to assume

the-legal warranty of seaworthiness owed to longshorenien

_ working on ships in accordance with Seas Shipping Co. v.

21, Title 33 U.S.C.A., Sec. 905, i FZ

22. Reed-v. Steamship. YAKA, 373 US. 410, 10 L, Ed. 2d 448

(1963). : ;

14

_ Sieracki.* Yet as employer the stevedore presumably, was

also accorded the exclusiveness of liability provisions con-

tained in the Longshoremen’s & .Harbor ,Workers’ Com-

pensation Act.** An in rem action in admiralty was. filed |

against the vessel on the theory of unseaworthiness, and

the United States Supreme Court held that the suit sup-

| ported in personam liability, since the employer-stevedore-

.. Shipowner pro hac vice owed the warranty of seaworthiness

to the longshoreman, despite the provisions of 33 U.S.C.A., -

Sec. 905. Be ) . . \ ; .¢

ownership, operation and control of the ship. Gulf Steve-

_ doré Corporation is a local business enterprise in Houston,

Texas whose sole contact with this vessel was a result

of its oral agreemenit-with Luria Brothers, owners of cargo

and a time or space charterer, to load its cargo on board.

Petitioner would strain the YAKA reasoning even further

_ By urging YAKA upon the Court, Petitioner seemingly

contradicts his previously asserted Position that the cause

of action which he is stressing is solely as.a beneficiary

mee , Seas Shipping Co. v. Sieracki, 328 US. 85, 90 L. Ed. 1099

24, Title 33 US.CA,, ‘Sec. 908. ih

25. Title 33 U.S.C.A., Sec. 905,

NX

a

of the stevedore’s breach of its implied warranties running —

to the shipowner and as an equitable owner of the vessel

owner’s right of indemnity against the stevedore. YAKA

was a direct action in rem based on the ‘unseaworthiness

of the vessel. Gulf Stevedore Corporation as a land based

business operation does ‘not owe the warranty of sea-

worthiness to. anyone. .

CONCLUSION * iP 3a fie

Petitioner would not deny that in this case he has is sought ==

iid normally need to go:in order

to maintain suit. Yet in doing so, he has departed from

sound legal: doctrines which, if successful, could destroy

the very premise on which all compensation law is based,

'@ quid pro quo between employee and employer.

Gulf Stevedore Corporation owns ‘and operates no

vessels, but it does employ longshoremen, all of whom are

covered by a policy of Workmen’s Compensation Insur- - .

ance pursuant to the provisions of the Longshoremen’s &

Harbor Workers’ Compensation Act. which’ was in full

force and effect on the date of injury to B. A. Watson.

Section 5 of the Act provides that compensation is the

exclusive liability of the employer (Gulf Stevedore Corpo- .

ration) to its own employees (Petitioner Watson) when —

it has secured payment of. compensation as required by

the Act. This was done. Petitioner’s clear ‘departure from

the legal issues in this case-to allude to the compensation .

_Claim’is presumably contemplated to cast the challe

theories in.a more advantageous light, despite the fact

_ that Respondent has fairly met its statutory obligations

16

can be no reliance placed on the vitality of Section 905 .

' Of the Longshoremen’s & Harbor Worker’ Compensation

Act under these facts, the result summarily negates. any

protection which the employer } = under this Compensa-

tion Act with respect to an in personam action by a

+ longshoreman-employee. —_— aR ee: SBtaeg

Inasmuch as there is no conflict with ‘the decision of

another Court of Appeals or with Federal I:

applicable decisions of this Court; ‘it is z&r

mitted that the’ Petition Yor Writ of Gé

Part O. BUE, JR. :

. Attorney for Respondent, om

___. Gulf Stevedore Corporation

Royston, Rayzor & Coox—. “avr ap Paes

| PROOF OF.SERVICE.

Carl O Bue, Jr., attorney for Respondent bei “Ss

ber of the Bar of the Supreme Court, , itec

fe

:

:

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4

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i SE

APPENDIX A

In —

UNITED STATES DISTRICT COURT

"For THE, SOUTHERN DisTRICT OF TEXAS |

‘nats Houston DIVISION aki

~—". BERTRAM A. WATSON; avi:

AR oi onl : Libellant

ve ae

| _ GuLr STEVEDORE ‘Corporation, ee

: Respondent

“AD. NO. 63-H-101

W. JILES ROBERTS of ineliai Texas; ie

ee _. Proctor for Libellant, . ==

RoysTon, Ravzoe & Cook: (Carx O, Bur, In.)

of Houston, Texas; Proctor for ee ;

December 28,1965 neiiaayie y bedi

PEA and ‘Order of Dismissal:

- Petitioner longshoreman, vibe th ediidzemitian sitntey

_ Respondent stevedoring company, was injured while work- —

immu. :

+. in the Port of Houston, Texas.’ ' “th

. eS:

___ Petitioner purports-to sue its own employer directly on: ii

_, the theory-that he is ‘the third-party beneficiary of an

/_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 notwithstanding the exclusive.

_, liability provision as against an employer in the Longshore-

_ men’s and Harbor Workers’ Compensation Act, Section -

_ 905 of Title 33, USCA, which it is not disputed is other-

esis ee oe a,

Petitioner relies upon the doctrine in Reed v. The Yaka,

373 U.S. 410, and upon. ah extension of the principle that

a vessel owner has.a right of indemnity as against a steve-

‘here. This case involves no prior adjudication of the ves-

ticular vessel (emphasis added throughout) with the status

(Of a “seaman” insofar as his right to sue the vessel for un- -

Temedy provision of Section 905. In respect to instant case, ~

it is only incidental that in The Yaka the longshoreman’s ._-

<The record shows that Respondent in“instan t case had no

' Tela ip with the vessel other than as coitracting .

Petitioner’s reliance on a third-party right of ihdeennity

is equally untenable. It would directly contradict and frus- -

trate the purpose of Section 905; Tile tight of indemnity

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- _

Morena Bt Tespect to an in perso eee te: 9a

shoreman. .

_ For the foregoing reasons; “the © Respondeni’s Motion to

Dismiss is granted. . |

- /s/ ALLEN B. HANNAY .

' United States District Judge

Ri A

APPENDIXB }

In Tue aa ae

UNITED STATES COURT OF APPEALS &

‘For Tue Firra Circurr carer:

No.23579

BERTRAM A. WATSON, te mI

‘ RIS Appellant,

+, \... GULF STEVEDORE CoRPORATION, _. 5

: ey at a Pei a" ' Appellee.

Appeal from the United : States District Court for the *

"Southern. District of Texas ee

"(March 28, 1967.)

Before HUTCHESON, GEWIN and COLEMAN,

employee . i - and anyone otherwise entitled to recover damages }

from such employer at law or in admiralty on account of such

y «

“ Texas. It is important that the employer occupied solely a

_- the position: of a shoreside! stevedoring company“having no

ownership or operational interest in the vessel. The eni- .

on February 6,1957. ; vt Ye

. _ The obstacle, which we hold to be insurmountable, in the

hand, while the employers are tequired to pay.compensation :

Lblltg Der alt their benefit is the certainty of limited .

af dq.

* 257 F. Supp. 503 (S.D. Tex. 1965).

*See Ryan Stevedoring Co., Inc. v. Pan-Atlantic Corp., 350 US.

124, 129, 140 (1956); Smither.& Co.; Inc. v. Coles, 243 F 24 220,

_, 222-23 (D.C. Cir.), cert. denied, 354 'U.S,.914 (1987): Haynes v. -

- Rederi A/S Aladdin, 362 F.2d 345, 350 (Sth Cir. 1968). ele

|

~ Path of this libel is 33 U.S.C. Sec. 905 which states in part -

=. Ae, Nene ees

Tight of recovery is limited by Sec. 905 only as against the

employer; the employee remains free to sye nonemployer_

_ third parties for damages. See Seas Shipping Co., Inc. v. -

_ Sieracki, 328 U.S. 85; 101-102 (1946); 33 U.S.C. Sec. 933.

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;

hence, the longshoreman may sue the vessel 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 Ship-

ping Co., Inc. v. Sieracki, supra. Furthermore, the steve-

doring company impliedly warrants that it will perform. its

Stevedoring services in a workmanlike manner; thus the

_ Stevedore must indemnify the vessel owner for- damages .

paid to-the longshoreman when a breach of the warranty

of workmanlike service brings into play the vessel’s unsea-

worthiness.‘ Using those established principles as a plat-

' form, libellant urges two contentions on which he attempts

. to sue the employer-stevedore directly: first, that the long-

shoreman is a third-party beneficiaty of the warranty of

workmanlike service; second, that the Jongshoreman is the

equitable owner of te vessel owner’s claim for indemnity

_ Both nen assume thé 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 unseaworthi in a libel by a longshoreman

inly would destroy Sec. -

a \ e

(1964); Crumady v. The J\H. Fisser, 58 U.S. 423, 429 (1959);

2 - tic Corp., supra note 3,

teamship Corp. v. David, 353 F.2d 660, 661-

62 (Sth Cir.), cert. denied, 384 U.S. 972 (1966).

-<f

tract between the stevedore and someone other than the

vessel owner, such as a charterer‘ .or a consignee* of the -

" Cargo." But there is 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 em-

Ployee’s sole and exclusive remedy, if any, is against the

_ Vessel owner.’ 7 eee : ae a

Reed v. The Yaka, 373 U.S. 410 (1963) clearly is dis-

tinguishable from the instant case. There the Court held

that the employee could maintain a libel ‘for damages

against his employer because the employer ‘also happened

-, to be bareboat charterer, ‘or owner pro hac vice, and as

* Crumady v. The J..H. Fisser, Supra note 4, at 428.

* Waterman Steamship Corp. vy. Dugan & McNamara, Inc., 364 U.S.

421, 424-25 (1960). .

"This is because “the warranty which a’ stevedore owes when he

_ Bes aboard a vessel to perform services is plainly ior ‘the benefit

*See Ferrigno v. Ocean Transport Ltd., 309 F.2d 445 (2d Cir.

1962); Sanderlin v. Old Dominion Stevedoring Corp., 261 F.

Supp. 281 (E.D. Va. 1966). to

"Accord, Rodgers v. Baltimore & Ohio R.R,, 323 F.2d 996 (2d

Cir. 1963), cert. denied, 376 U.S. 932 (1964); Kyles v. James’

W. Elwell & Co., 290 F.2d 703, 706 (7th Cir. 1961), cert..denied

369 US. 852 (1962); Thibodeaux y. J. Ray McDermott & Co., °

276 F.2d 42 (5th Cir. 1960); Smither & Co., Inc. v. Coles, supra;

Garland v. The S.S. Illiamna, 198 F. Supp. 187 (D. Alaska 1961);

Skow v. Gypsum Carrier, Inc., 164 F, Supp. 879 (N. D. -Cal. .

1958). |

. , ° 24 2

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 libel is precluded by Sec. 905. The judgment is

AFFIRMED.

*

"See also Grace Line, Inc. v. Kanton, 366 F.2d $10 (9th Cir.

_ 1966) (per curiam); Miculka v, American Mail Line, Ltd. 229

F. Supp. 665 (D. Ore. 1964).

eubeitieneeeen ee

DENIED

So 6 -

Seen tise IN Tar Boe

UNITED STATES COURT OF APPEALS

For Tar Fiera Crecurr 7

No. 23,579

BERTRAM A. WATSON

| + git _ Appellant,

ve

GULF STEVEDORE CorPoraTion

Appeal from the United States District Cour,

for the Southern District of Texas.

(May 8, 1967)

Geen

ce

| __ On Petition for Rehearing

Before HUTCHESON, GEWIN and COLEMAN, Circuit

Judges, | 7

PER CURIAM: __ | |

_ It is ORDERED that the petition for rehearing in the

above entitled and: number cause be, and it is hereby

26

APPENDIX D —

§ 905. EXCLUSIVENESS OF LIABILITY 7

_~ The liability of an employer’ precribed in section 904 of

‘this title shall be exclusive and: in place of all other lia-

bility of such employer to the employee, his legal repre- ,

_ Sentative, 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 payment of compensation as required aaa

chapter, an injured 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

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 as- |

‘sumed 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. .