Petition for Writ of Certiorari — Houser v. O'Leary

eT eee

- SUPREME COURT. & & =

LIBRARY, |

In the Supreme Cn

of the United States _

OCTOBER TERM, 1967

no. ...1.0. : 7

JOHN HOUSER,

Petitioner,

j v. : >

J. J. O’LEARY; Deputy Commissioner,

Fourteenth “Compensation . District,

and

AMERICAN MAIL LIN E, LTD., a corporation,

- and

~. FIREMAN’S FUND INSURANCE. COMPANY,

a: corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

‘To. the United States Court of Appeals

for the Ninth Circuit

EDWIN J. PETERSON

801 Standard Plaza Bldg.

Portland, Oregon 97204 :

Attorney for Petitioner

_ RAYMOND J. CONBOY

POZZI, LEVIN & WILSON

' 808 Standard Plaza Bldg.

Portland, Oregon 97204

. 7 Of Counsel for Petitioner

EEE

STEVENS-NESS Law PCB. co. AB portiano, ons. ; : 12-67 .

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; ‘SUBJECT INDEX

Opinions. Below and Order Extending Time for

Filing Petition

Jurisdiction ee 7 i —_ =

Questions Presented - | eres

Constitutional Provisions and Statutes prea 38

> Statement of the Case - eee |

Reasons Relied Upon for Granting the Writ mes a:

' Argument : a 7 §-

Legislative History of the Act... ¥e jake

Calbeck v. Traveler’s Insurance Co. _..... ae.

Decisions of the Lower Courts ie (cnniemnaa ae

Conclusion _....: ; 22

| Appendix “A” ( Compensation Order, mae’ of

- Claim) 25...

3 Appendix “BR” (Opinion-of the District Court) ..

| Appendix Og (Opinion of the Circuit Court =

Appeals) __ 31

se ar,

Sin RA Aa AE MiG. cn

send sient RT |

e

INDEX OF AUTHORITIES |

INDE “Page

CASES

American Export Lines v. Revel, 226 F.2d 82, 84

(C.A. 4, 1959) _ 20

| American Stevedores v. Porello, 330 U.S. 446, 67

S. Ct. 847 (1947) Sscconntiaalla 20

Avery v. Oosting (C.A. 4, Docket’ No. 10,328), *

same case 245 F.Supp. 51 (D.C., Va., 1965). ‘8, 20

Avondale Marine Ways v. Henderson, 347. U.S.

366, 74 S. Ct. 100. (1953) _----18, 20

Calbeck v.- ‘Peisnies S Insurance Co., 370 U.S..114, . -

82 S. Ct. 1196 (1962) 1, 9, 15, 16, 17, 18, 19

Crumady v. Joachim Hendrik Fisser, 358 U. S.

423, 9 s. Ct. 445 (1959) _.: 15.

‘Pitein« v. Pan American World Airways, 359

F.2d 493 (C.A. 2, 1958) 19

Davis v. Department. of Labor and Industries, 317

U.S. 249, 63 S. Ct. 225 (1942) 13

DeBardelben Coal Corp. v. Henderson, 142 F.2d

481 (C.A. 5, 1944) 16

‘Grant-Smith- Porter v. Rohde, 257 U.S. 469, 42S.

Ct. 157 (1922) '10, 13, 15

“Gutierrez v Waterman’s Steamship Corp., 373. 7

US. 206, 210, 83 S. Ct. 1185 (1968).. Wee 1417 —

Houser v. r. O'Leary, 383 F.2d 730 (C.A. 9, haa ™

. Industrial Commission v. N a ey 259 U.S.

‘263, 42 S. Ct. 473 (1922) 10, 18

Interlake S.S. Co. v. Nielsen, 338 F.2d 879 (C.A.

6, 1964) cert. den. 381 U.S. 934, 85 S. Ct.

1765 21

Italia Societa v. BOE Stevedoring Co, 376 US.

315, 84 S. Ct. 748 (1964) 15

INDEX OF AUTHORITIES (Cont.)

~ Johnson v. Trainer; (C.A. 4, Docket No. 10,298). 8

-Kloseck v. Trainer, (C.A. 4, Docket No: 10,299) 8

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 -

S. Ct. 488 (1920) 9, 10, 11 12,17

McCollough v. The Traveler’s Insurance Co., et al, . ~

— F.2d — (C.A. 5, August 9, 1967), Petition

_.for Certiorari, No. 788 (Oct. Term; 1967) .

Marine Stevedoring Gorp. v. Oteling, 288 F. Sip.”

. Marine Stevedoring Corp. v. Oosting, 2 . Supp.

78: (D.C., Va., 1965) - 21

Michigan Mutual Liability Company v. Arrien, 344

' a 640, (C.A, 2, 1965) cert. den. :382 ve ”

Nicholson v. Calbeck, et al, — F.2d — (C.A. 5,

October 31, 1967), Petition for Certiorari No.

_ 877 (Oct. Term, 1967) __.- -T, 20, 22

North Pacific 8.S. Co. v. Hall Bros. Co., 249 U.S.

. 119,.89 S. Ct. 221 (1919) 2. _ 15°

O'Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48,

50 (CA. 5, 1965). | 20, 21

Parker v. Motor Boat Sales; Inc., 314 U.S. 244,62 -

S. Ct. 221 (1941) 13

| Reed v. SS. Yaka 873 U.S. 410, 88 S. Ct. 1349

Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,

_ 850 U.S. 124, 765 S. Ct. 232 (1956) onovrsonenceliay BD

-Sanderlin v. Old Dominion Stevedoring Corp., 45

A.M.C. 1691 (C.A..4, October 26, 1967) 15

Southern Pacific Co. v. Jensen, 244 U.S. 205, 39 .

S.Ct. 524 (1917) __.......9, 10, 11, 13

F.2d 555, 558 (C.A; 2, 1950)

Strika. v. Netherlands Ministry of Traffic, 185

6.

22

14

Page -

"INDEX OF AUTHORITIES Cont.)

Page

US x, Hot State Bank, 270 US. 49, 46S. Ct. 197 =

U.S, _v. Monticello, 20 Wall 438, 87'S. Ct. 391

: (1874) 18

Washington v. Dawson, 264 U.S. 219, 44'S. Ct. 802

(1924) __ | 9,11, 12,17.

Consirrurion AND. STATUTES

, Administrative Procedure Act, 5 U. S.C.A. § 701

-et seq.. 3 :

Admiralty Extension Act, 46 U.S. C. A. § 740. “4, 14.

Constitution of the United States —

‘Death on the High Seas. Act, 46 U.S.C.A. § 761

. et seq. —- 19

Longshoremen’ s and Harbor Workers’ “Act, 33

U.S.C.A. § 901 et Seq. ---------- 3, 4, 12 and Passim

28 U.S.C.A: § 1245 (1) 3: _

28 U.S.C.A. sipatia’ (c) -.- | ; 2

"MISCELLANEOUS :

| Cinireniioned Record, 69th Cong. awe

- Hearings on S. 3170, Senate J udiciary Committee, |

First Session - 11, 12

~ National Academy of Sciences— National Research

1956) Safety Survey (Wash., D.

42 New York University Law Journal ee

Robinson on Admiralty (1989 Ed.). 18.

_ Senate Report. No. 973, 69th oe. * First Session. 12

4a 1 the Supceiae Court

ee of the United States

OcTOBER TERM, 1967

No. ......... ecsaemebinl

' JOHN HOUSER, ;

| . . + PBetitioner,

v. :

‘J. J. OLEARY, Deputy Commissioner,

reeryene Compensation mem,

and =

ARERICAN: MAIL LINE, LTD., a corporation,

- and

FIREMAN S FUND INSURANCE COMPANY,

| a corporation,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit -

The Petitioner, John Houser, prays that a writ of

certiorari issue to review the judgment of the Court

of Appeals for the Ninth Circuit in this case. ‘

d

i tt

CDT EON BAS renal RRS LO

:

|

”

é

| OPINIONS BELOW

AND ORDER EXTENDING TIME FOR FILING PETITION

| \ This is a longshoreman’ s claim for benefits under

‘the Longshoreman’s and Harborworker’s ‘Compensa-

-. tion Act as amended, 33 U.S.C.A. § 901 et seq.

The opinion of the respondent Deputy Commis-

sioner was’ rendered on J uly 15,.1965. The opinion -

is unreported, and a copy is appended to this Petition

as “Appendix A.”

A libel was thereafter filed in the United States

- District Court for the District of Oregon. The opin-

ion of the District Court was rendered on March 19,

1966, and is reported in 253 F. Supp..417. A copy of

the opinion is appended to this Petition as a |

. B. 99

The cilia of the Court of ‘Appeals for ‘the

Ninth Circuit was rendered on- September 27, 1967,

and is reported at 383 F.2d 7 30. A copy is appended

to this Petition as “Appendix ol

‘On December 18, 1967, Mr. Justice Abe Fortas |

signed an Order extending the time for filing this

Petition to January 15,1968. = ~ |

JURISDICTION

The jurisdiction of this Court to review the judg-

ment of the Court of Appeals for the Ninth Circuit

by writ of certiorari is conferred by 28 U.S.C.A.

§ 1245(1) and-§ 2101(c). |

The* jurisdiction of-the District Court was con-.

ferred by 83 U.S.C.A. § 921, and 5 U.S.C.A. §§ 701- .

7% .° »

~ &

s QUESTION PRESENTED os

“thd -Sole eiidtien presented by this Petition “is:

* whether a longshoreman, injured on a dock extend-'

ing into the navigable waters Of the Willamette River

while loading a vessel berthed at the pier, is entitled

to benefits. under the Longshoremen’s & Harbor

Workers’ Compensation Act.

oe: : :

CONSTITUTIONAL PROVISIONS AND. STATUTES -

The following Constitutional provisions and stat- -

utes are material to our —— in support of the

Petition. .

' The Constitution of the United States. sunaiie:

“Article I, Section 8. The Congress shall have

power . . . to make all laws which shall be nec- -

essary and proper for carrying into Execution —

the foregoing Powers, and all other Powers vest--

ed by this Constitgition in the Government of

the United States, or in any Department or Of-

fice thereof. ©

‘Article III, ‘Section 2. The judicial Pune

shall extend . . . to’all Cases of admiralty and

maritime J urisdiction. “3

ve Longshoremen’s ‘and Harbor Workers’ Com-

-’ pensation Act, as amended, 33 U.S.C.A. § 901 et seq., -

provides: ‘

“A a

S

f : o —s

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“Section 903. Coverage.:

i: . (a) Compensation shall be canis. under

this Chapter in respect of disability or death of

an employee, but only if the disability or death

results from an injury. occurring upon the nav-

igable waters of the United States (including

' any dry dock) and if recovery for the disability —

or death through workmen’s compensation pro-

= may not validly be _ by State

eee

law. . ”

The Admiralty Extension a, 46 U. ton C. A. § 740

provides:

“The admiralty ait’ maritime jurisdiction. of

the United States shall extend to and include all

cases of damage or injury, to person or prop-

erty, caused by a vessel on navigable water, not-

withstanding that such damage or injury be done

or consummated on land.” |

STATEMENT OF THE CASE

On May 1, 1965, the petitioner was employed by

American Mail Line, Ltd., an employer subject to the

provisions of the: Longshoremen’s and Harbor Work-_

ers’ Compensation Act (R. 1,.8). The petitioner was

-one-of a gang’ of longshoremen (R. 41) who were en-

gaged in loading the vessel GUAM BEAR. (R. 21),

which: was berthed at Terminal No. 1, Berth No. 7,

of the Willamette River in Portland, Oregon (R. 21).

The length of the pier on its face at Berth No. 1,is ..

1,100 feet (R. 28), and the face extends out 34 feet

over the water (R. 26-27, 39-40). At one end of the

rn

wv

5

dock is a slip, 630 feet long, at’ which ocean going

vessels also befth (R. 30-31). Along the face of the

. dock, and running almost its entire length, are two

lines of railroad track, the, center of the outermost

tracks being eight and one-half feet from the river.

edge of the dock (R. 27-28).

The water of the. Willamette River runs beneath

the dock, and small boats sometimes navigate under

the dock (R. 39-40).

On the date in question, the petitioner was work-

ing on a gondola car on the railroad track closest to

the ship (R. 42). which was berthed at the face of |

the dock (R. 39).°He was one of two slingmen en-

gaged in hooking up a load of creosoted piling on

the gondola car to the ship’s gear for loading aboard

the vessel (R. 40-42). While engaged in performing

this duty, the « petitioner suddenly appeared to

straighten up, slipped, and fell down on the shore-

_ ward side of the car, eaiettiee injuries & 41-43,

58-59).

Slingmen are regular members of a gang of long-

- shoremen, the rest of whom work aboard the ship (R.

46). Slingmen sometimes go aboard the ship for the

purpose of getting to barges on the water, on which

they frequently work (R._4], 60). They also work

directly and immediately with the-mari on the ship

in. rigging. the yessel, handling parts of. the ship’s

rigging in the process when it is convenient to do |

so (R. 60).

On June 16, 1965, Deputy Conieninienil . O'Leary

6

held a enw and on July 15, 1965, -made and en-

tered a compensation order, rejecting the petitioner’ Ss.

claim for benefits under the Longshoremen’s and Har-

bor Workers’ Act upon.the ground that the petition-

er’s injuries “did not occur upon the navigable wa- ~

ters of the United States * * *.” (See Appendix A.)

The petitioner then instituted proceedings in admir-

alty in the United States District Court for the Dis-

trict of Oregon pursuant to 33 U.S.C.A. § 921 and 5

_U.S.C.A. §§ 701-706 for the purpose of ‘reviewing the

Deputy Commissioner’s determination. The petition-

er’s employer and compensation insurance carrier —

were permitted to intervene (R. 5, 7). All parties

moved for a summary judgment (R. 11, 137, 189), .

and the District Court, Honorable Gus J. Solomon,

Judge, rendered an opinion upholding the determin-

ation by the Deputy Commissioner (R. 141). J Judg-—

ment was accordingly entered granting’ the motions

of the respondents for summary judgment (R. 145).

~ The petitioner appealed to the Circuit Court of Ap-.:

peals for the Ninth Circuit, Which affirmed the judg- -

-ment below. (See Appendix C). The Circuit Court

agreed with the District Court that an injury upon

‘a pier is not “an injury occurring upon the navigable

waters of the United States” within the purview of

Section 903 of the Longshoremen’ s and Harbor ‘Work-

ers’ Compensation Act.

REASONS RELIED UPON FOR GRANTING THE WRIT

There are two reasons why this writ ought to be

granted. First, the decisions below are contrary to

the ratio decidendi of Calbeck v. Traveler’s Insurance.

‘Co., 370 U.S. 114, 82 S. Ct. 1196 (1962). Second, the .

issue presented here is vital to the administration

~ of the Longshoremen’s and Harbor Workers’ Act and

requires an authoritative decision of this Court. Be- -

cause of a narrow interpretation of the Act in the

circuit and district courts, the compensation rights

of harbor workers are iadins into confusion which it

was the purpose of Congress in passing the Act, ard _

more recently of this Court in Calbee, to —- to

an end. ; =

_—_—

-——The issue presented by. this case is whether a

‘ees injured on a dock while loading a ship

is entitled to coverage under the ‘Longshoremen’s —

and Harbor -Workers’ Compensation Act. The issue

is no stranger to the courts. There are, in addition

to ours, two petitions for certiorari involving the

same problem presently pending before this Court:

Andrew Nicholson v.-C. D..Calbeck, Deputy Commis- .

sioner, et al, No. 877, (October Term, 1967) ; James

D. McCollough v. The Travelers Insurance Company

and Levingston Shipbuilding Company, No. 788 (Oc-

tober Term, 1967). Both of these petitions are for

reviéw of decisions of the United. States Court of

Appeals for the Fifth Circuit. In addition, there are

now pending. before the United States Court of Ap-

8

peals for the Fourth Circuit rehearings in the case

of Albert Avery v. Jerry C. Oosting, et al, Docket —

No. 10,328; in the case of William H. Johnson v.

John. P. Trainer, . Deputy Cominissioner, ‘et al,

Docket No. 10,298; and in the case of Julia T. Klos-

eck v. John PeTrainer, Deputy Commissioner, Docket

No. 10, 299, all of which involve issues analogous to

ours. It has been estimated that one of every two

longshoremen i: is injured on the job each year and that

fully 25% of. all-injuries to longshoremen occur on

\ wharves or piers as the men work back and forth be-"

‘tween the wharf and ‘the ship loading and unloading .

cargo. (42 New York University of Law Journal 331, _

344, footnote’ 114; footnote 67 at.p. 337 ; National

Academy of Sciences—National Research Council,

_ Longshore Safety Survey (Wash., D. C., 1956) p. 1 et

seq.).

Our problem is created ti the language which .

Congress chose to describe the conditions for com-

pensability of maritime injuries. Section 908(a) pro-.

vides that compensation shall be payable “only if the

disability or death results from an injury occurring

upon the navigable waters of the United States (in-

cluding’ any drydock) and if recovery for the dis-

ability or death through workmen’s compensation

proceedings may not validly be eviiieaeie by State law

a MF

Legislative History of the Act

To understand the purpose and meaning of this

language, as well as our contention that the lower

court decisions in aie. case fail to give effect to thee

opinion of this Court in Calbeck v. Traveler’s Insur-

ance Co., it is necessary to review the history of Sec- -

tion 903.

The occasion and necessity for the Longshore-

men’s and Harbor Workers’ Act was a series of cases.

decided by this Court concerning the application of

> State law within the admiralty jurisdiction. In South-

ern Pacific Co. v. Jensen, 244 U.S. 205, 39 S. Ct. 524

_ (1917), this Court ruled that Federal maritime law

occupied the agea of admifalty jurisdiction conferred

upon the Federal Government by Article ITI, Section

2 of the Constitution, and held that State workmen’s’

. compensation laws could not constitutionally be ap-

_ plied to an injury occurring’ upon navigable waters ©

within the Federal admiralty jurisdiction to an em-,

ployee engaged in maritime employment, because to

do so would destroy the uniformity of. the Federal

' maritime law which the Constitution was intended to

establish. The employee injured in Jensen was a long- |

shoreman engaged in unloading cargo, and the injury

was sustained on a gangplank over navigable waters

between the vessel and the wharf. See Calbeck v.

Traveler's Insurance Co., 370 U.S. 114, 117 (1962).

Two Federal statutes designed to permit the appli-

cation of State workmen’s compensation laws to in-

juries in maritime employment ‘upon navigable wa-

ters were later held to be’ unconstitutional. Knicker-

bocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct.

438 (1920); Washington v. Dawson, 264 U.S. 219,

44 S. Ct. 302 (1924).

&

10

Perhaps in heed of the criticisms leveled at its

decisions in Jensen and Knickerbocker, and in recog-

nition of the harsh results engendered by: these cases,

this Court formulated. the “local concern” doctrine

which permitted workmen to recover under State

workmen’s compensation laws for injuries occurring

upon navigable waters within the admiralty ju-

risdiction, provided that the activities and contracts.

of maritime employment of the employees affected

were matters of merely “local concern,” not directly

related to navigation or commerce. This Court rea-

~sSoned that in such circumstances the application of °

' ? State procedures and remedies would not destroy the -

uniformity. of the Federal maritime law required by

the Constitution. Grant-Smith-Porter v.. Rohde, 257

US. 469, 42 S. Ct. 157 (1922). y

At the same term, this Court held that State ©

workmen’s compensation could be applied, without

reference to the “local concern” doctrine, by direct op-

eration of state law for injuries occurring upon ex- _

tensions of land into navigable ‘waters, such as piers

and wharves, because injuries upon land and such

extensions were within the recognized non-maritime

area of state jurisdiction. Industrial Commission v.

Nordenholt, 259 U.S, 268, 42 S: Ct. 473 (1922) (in-

jury to longshoreman working on a pier). |

In the context of these decisions, the Longshore-

men’s Act was drafted and adopted.’ As originally

drafted, and sponsored by the International Long-

shoremen’s Association and unions representing ship

11

repairmen and allied trades, the Bill would have ap-

plied to “any employment performed on a place with-

in the admiralty jurisdiction of the United States,

except employment of local concern and of no direct

_ relation to navigation or commerce * * *.” Hearings

on S. 3170, Senate Judiciary Coiamiites, 69th Con-

gress, First Sess., p. 2 (hereafter “Senate Hear-

ings”). In that form, the bill was apparently designed

to provide coverage only for injuries within the ad-

_miralty tort jurisdiction where they ‘Were not com-

pensable under state workmen’s compensation acts,

whether applying of their own force or. under the new

“local concern” doctrine.-

At the Senate Pian: representatives of the :

interested labor organizations testified generally in _

support of the Bill, explaining the need for it as a

result of the Jensen, Knickerbocker and Dawson de-

cisions, and noting that all but six of the states had

_ workmen’s compensation laws. Senate Hearings, pp:

18-44, 37. An attorney for the unions‘also explained

that the locus of the injury was the sole test for ad-

miralty tort jurisdiction and that longshoremen in-

jured while on a wharf or pier were within the tort —

jurisdiction of the states, which could. validly pro-’

vide compensation for them by state laws. Id. ‘at

pages 29-31. He noted that if a longshoreman fell,

while going between the ship and the wharf and hit . -

the wharf he would be covered under the local com-

, pensation law, but if he fell between the ship and

the wharf he would be denied state compensation. Jd.

at 29-30.

- 12

The proposed exclusionary language “except em-

| ployment of local concern and of no direct relation to

navigation or commerce”: was described by employer

groups as. being unnecessarily broad and ambiguous, __

and as being a potential breeder of litigation. Id. at

pages 57, 91, 95. Apparently in response to these

eriticians the Senate Committee recommended the

“upon navigable waters” limitation now embodied in

83 U.S.C.A. § 903 (a) which, of course, does not in- -

clude the “local concern” phraseology. Senate Report

973, 69th Congress, First Sess., p. 2. The Senate

Judiciary Committee made it clear that the Bill was

made. necessary by this Court’s decisions in Jensen,”

Knickerbocker and Dawson, and that it was designed

to cover repairmen, longshoremen and other amphib- ~

ious harborworkers. Senate Report 978, supra, pp.

16-17. The Committee noted that under its recom-

mended language “injuries occurring in loading or

unloading are not covered unless they occur on the ©

‘ship or between the wharf and the ship s6 as to bring |

them within the maritime jurisdiction of: the United

States.” Id. p. “16. (Emphasis added). The language

" recommended bythe Senate Judiciary Committee,

was, of course, the language now found in 33 U.S.C.A.

903(a). The. Committée’s report indicates that in

use of the language “navigable waters” it was ex-

’ hausting the limits of what was then felt to be the

maritime jurisdiction of the United States over per-

sonal injuries.

In a series of cases arising after the adoption” of .

the Act in 1927: * (Har. 4, 1927, C.°509, § 1, 44 Stat.

———- ...

13

1424), j , it soon became apparent that the ofiginal Con- »

gressional concept, derived from Jensen, of an im-

passable barrier between federal maritime and state _

non-maritime jurisdiction was inaccurate. Problems

of construction arose first with the.“local concern”

doctrine. Before the passage of the” ‘Act, the Court —

_, had held various -activities to be subject to State law

because, although maritinie, they were of sufficiently

local concern to support State jurisdiction. Grants

Smith-Porter Ship Co. v. Rhode, 257 U.S. 469, 42 S.

‘Ct. 157 (1922). In Parker v. Motor Boat Sales, Ine.,

814 U.S. 244, 62 S. Ct. 221 (1941), this. Court held —

that there could ‘be concurrent Federal and State com-

pensation coverage in areas of “local concern.” There

' - followed the doctrine of the “twilight zone. ” Davis |

.v. Department of Labor and Industries, 317 U.S. 249,.

63 S.Ct. 225 (1942). This, too, permitted coverage

under either State or Federal law, despite the lan-

guage of 33°U.S.C.A. § 903’ which limits Federal cov-

erage to situations where compensation “* * * may

not validly be provided by State law.” — eS ee

Then, in Avondale Marine Ways v. Henderson,

347 U.S. 366, 74 S. Ct. 100 (1953), this Court held

that a workman on a marine railway came within

the jurisdiction of the Longshoremen’s and Harbor

Workers’ Compensation Act, because a marine rail-

way was held to be a dry dock, even though the vessel

being -worked on was 400 feet from the water, and

clearly subject to State coverage: (See the opinion in

the court below, 201 F.2d 487, 438, C.A. 5, 1953).

ta

eee 14 - | |

Thus, from the original position in which the two -

spheres of authority were thought to be muv-

tually exclusive, it. gradually became apparent that

_ there was a considerable area of overlap including ac- -

tivities of “local concern,” “twilight zone” activities,.

and marine railways on land, for all of -which the

States could validly provide compensation, but for

which compensation was nevertheless held to be af-

forded under the Longshoremen’s and Harbor Work-

ers’ Compensation Act, despite the statutory lan-

. guage.

While this area of concurrent, jurisdiction was be-

ing delineated in the courts, the tort admiralty juris-

diction of the United States was ‘at the same time

moving inland from the water’s edge, Strika v. Neth-

erlands Ministry of Traffic, 185 F.2d 555, 558 (C.A.

2. ated move memorialized~in the Admiralty Ex-

tension “Aet of 1948, which extended the admiralty

_ and maritime jurisdiction of the United States to “all

cases of damage or injury, to person or property,

* eaused by a vessel on navigable water, notwithstand-

ing that such damage or injury be done or consum- .

mated on land.” (46 U.S.C.A. § 740, June 19, 1948, -

-C. 256, 62 Stat: 496). This Court has not only up-

held: the Admiralty Extension Act against Constitu- .

.. tional challenge, but has indicated that it will not be

construed in‘a niggardly way. Gutierrez v. Water- |

i man’s Steamship Corporation, 373, U.S. 206, 210, 83

_ 8, Ct, 1185 (1968).

At the same time, the “contract” es juris- |

» diction of the Federal courts, which has always de- —

peor | 15

pended upon status rather than situs, North Pacific

S.-S. Co. v. Hall Bros. Co., 249 U.S. 119, 39 S._Ct.

221 (1919), was moving gradually into the field of -

personal injury law under the guidon of “express”

and “implied warranties” of the stevedore. American —

Stevedores v. Porello, 330 U.S. 446, 67 S.. Ct. 847

(1947 ); Ryan Stevedoring’ Co.'v. Pan-Atlantic S. S.-

Corp., 350 U.S. 124, 76 S. Ct. 282 (1956) ; Crumady

v. Joachim Hendrik Fisser, 358 U.S. 423, 79 S.. Ct.’

445 (1959) ; Italia) Societa v: Oregon Stevedoring Co.,

876 U.S. 315, 84 S. Ct. 748 (1964). This line of au-

thority finds its culmination in Sanderlin v. Old Do-

-minion: Stevedoring Corporation, 45 A.M.C. 1691

(C.A. 4th, October 26, 1967)* (Court of Appeals Dock-

_ et No. 11,211), in which a cargo checker injured on a

pier through the negligence of the defendant stevedore

was permitted to recover damages by a suit in admir-

- ‘alty as the third-party beneficiary of an express war-

ranty of workmanlike performance in the contract be-

tween the stevedore and the plaintiff’s employer. The

opinion (by Judge Sobeloff) makes it clear that the

result would be the same if the warranty were implied —

| rather than express.

Calbeck v. — s Insurance Co.

This, then, was the history and maincurrent of

admiralty ues involving the Act when the Court de-

cided Calbeck?v., Traveler’s Insurance Co.) 370 U.S.

114, 82 S. Ct. 1196 (1962). Calbeck involved an in-

jury to an employee who was engaged in the work of

- completing construction of a vessel afloat on navi-

16

gable waters: Before the Longshoremen’s and Harbor

Workers’ Act was passed, this Court had sustained

the validity of a State workmen’s compensation stat-

. ute as applied under such circumstances. Grant-

- Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.

Ct. 157 (1922). In Calbeck, the lower court therefore

reasoned that the limitation of coverage under Sec-

tion 903(a) to those situations where recovery “may

not validly be provided by State law” excluded the

application of the Act to the injured. employee. This

Court held, to the contrary, that the Act applies to

-. all injuries upon navigable waters, whether or not

State law also applies. The facts of Calbeck. are not

our facts; however, the ratio decidendi of Calbeck

requires a holding that the Longehoremen’ s Act ap-

plies to dockside injuries. .

In Calbeck, after reviewing the legislative history

of the Act, this Court concluded, (borrowing the

words of Judge Hutchison from DeBardelben Coal

_ Corp. v. Henderson, 142 F.2d 481) that “the provi-

sion ‘if recovery * * * may not validly be provided

by state law’ was placed in the Act not as a relin-

; quishment of any part of the field which-Congiess

could validly occupy but only to save the Act from

judicial condemnation, by making it clear-that it did |

not iatena to legislate beyond its constitutional pow-

” Moreover, this Court said of the Act in general

Canin borrowing the words of Judge Hutchinson) :

“The elaborate provisions of the Act, viewed

in the light of prior congressional legislation as

interpreted by the Supreme Court, leaves no room

s ®

for doubt, as it appears to us, that Congress in-

tended to exercise to the fullest extent all the

power and jurisdiction it had over the subject

matter * * *. In the application of the Act, there-

fore, the broadest pen it permits of should be

taken.” |;

e

Viewed in this way, the restriction of coverage to

injury occurring on “navigable waters” as well as in

the limitation regarding State law, stem from a Con-

. gressional excess of caution, rather than a purpose to

restrict the operation of the Act to an ambit short of

federal power over the subject matter. When the Act

was passed, “navigable waters” defined what was

then thought to be the limit of Federal maritime au-

thority over personal injuries, and in view of this

Court’s réadiness to strike down legislation in the

field, as evidenced by Knickerbocker Ice Co. v. Stew-

art, 253 U.S. 149, 40 S. Ct. 488 (1920) ; and Wash-

ington v. W. C. Dawson & Co., 264 U.S. 219, 44S. Ct:

302 (1924), the Congress was troubled with a con-

cern to “make it clear that it did not intend to legis-

late beyond its constitutional powers.” Calbeck V.:

_. Traveler’s Insurance Co., ‘Supra. As used in 33 U.S.

—6 CAL § 908(a), the words “navigable waters of the

- United States” refer to jurisdiction, not to a geo-

graphical line.

We believe that this f the meaning of Calbeck,

and if that is true, it is clear that dockside injuries

to longshoremen employed in loading or unloading

the ship are within the terms of the Longshoremen’s -

- and Harbor Workers’ Act. Sinte Gutierrez v. Water-

ad e

18

man Steamship Corp., 373 U.S. 206; 83S. Ct. 1185

(1963), and Ryan Stevedoring Co. v. Pan-Atlantic

S.S. Corp., 350 U.S. 446, 76 S. Ct. 282 (1956), the

_ constitutionality of such an application is beyond

dispute. ,

In view of what nearly all would regard as the

desirability of an inclusive system of compensation

for longshoremen, whether injured aboard ship or at

dockside, ‘we point out that there is a: ground less

broad than the broadest: ground: of Calbeck for hold-

ing the petitioner’s injury, and many similar dock-

side injuries, compensable under the Act. In our case,

the petitioner was:injured while helping to load the -

ship at a point on the dock extehding over the Wil-

lamette River. Small boats sometimes navigate under

the dock. The Willamette River under the dock,

would, absent the structure, be “navigable waters of

the United States.” U.S. v. Monticello, 20 Wall 430,

87 S. Ct. 391 (1874); U. S. v. Holt State Bank, 270

U.S. 49, 46 S. Ct. 197 (1926) ; Robinson on Admiral-

ty.(1939 Ed. ) 34 et seq. &

Although docks traditionally. have been: consid-

ered a@ part-of the land, Industrial Commission v.

Nordenholt Corp., 259 U.S. 2638, 42°S. Ct. 473 (1922),

there is no constitutional impediment, especially since

-the enactment of the Admiralty Extension Act, 46

U.S.C.A.. § 740, to an interpretation that docks are

upon the “navigable waters of the United States”

within the meaning of the Longshoremen’s and Har- —

bor Workers’ Act. That interpretation of the Act does

° 19 U

no more violence to the statutory language than does

an interpretation of the Death on the High Seas Act,

46 U.S.C.A.'§ 761 et seq., enacted before the advent

of the passenger plane (March 30, 1920, c. 111, §

' 1,41 Stat. 537), to embrace tortious acts aboard air-

craft. D’Aleman.v. Pan American World Airways,

359 F.2d 498 (C.A. 2, 1958).

While we have suggested this possible alternative

construction of the Act, we believe that its adoption,

_ restricting compensation to injuries occurring over

the’ water side of docks would, while embracing more

‘Accidents, create anomalies and excrescences of inter-

pretation more extreme than those plaguing the ad-

ministration of the Act at present. Accordingly, we

submit that this Court should adhere to the rationale’

of Calbeck v. Traveler's Insurance Co., and should

‘hold that the Act covers all injuries to harborwork-

ers which are fairly within the tort or contract ad-

miralty jurisdiction of the United States.

Decisions of the Lower Courts

Whether or not Calbeck is thought cintaitien

here, it must be apparent that an authoritative deci-

sion of this Court is required to halt a trend of deci-

sion that does violence to the Congressional purpose

and is demoralizing to those whose work brings them

within the ambit of the Act. There is, at present,

nothing which can properly be described as a conflict

among the Circuit Courts of Appeal. Those which

have so far ruled upon the issue hold that injuries

occurring upon a dock, without more, ‘are not com-

err

20

pensable. Michigan Mutual Liability Company v. Ar-

. rien, 344 F.2d 640, (C.A. 2, 1965), cert. den. 382

U.S. 835 (See however, the persuasive opinion by

.. Judge Palmieri in the District Court, 283 F. Supp.

496, S.D. N.Y., 1964, in support of a broader view) ;

Nicholson v. Calbeck, et al., — F.2d — (C.A. 5, Oct.

31, 1967); McCollough v. The Traveler’s Insurance ». .

Company, et al, — F.2d — (C.A. 5, Aug. 9, 1967) ;

American Export Lines v. Revel, 266 F.2d 82, 84 — |

.(C.A. 4, 1959) ; O’Keeffe v. Atlantic Stevedoring Co.,

- 354 F.2d 48, 50 (C.A. 5, 1965). Nevertheless, the

decisions in this area have an unreal quality about.

them. gg

Thus, this Court has held that an injury on a

marine railway 400 feet from the water’s edge is

compensable under the Act because the railway is a

drydock. Avondale Marine Ways, Inc. v. Henderson, »

346 U.S. 366, 74 S. Ct. 100 (1958). However, if a.

longshoreman suffers an injury on the dock while

unloading or loading a ship, he is not within the

coverage of the Act because the dock is an extension

of land. Houser v..O’Leary, 383 F.2d°730. (C.A. 9,

1967) ; Nicholson v. Calbeck, — F.2d — (C.A. 5,

Oct. 31, 1967). If a longshoreman is accidentally

hoisted by the ship’s boom and strikes his head on the

dock, he is covered: by the: Act, because “suspended

from the ship” which is “upon navigable waters.”

- O'Keeffe v. Atlantic Stevedoring Company, 354 F.2d.

48. (C.A. 5, 1967). If, however, instead of striking the

dock while being lifted by a ship’s boom, he “is

struck by the boom itself and injured, his injury is

21.

not compensable because occurring on an extension

of land. Avery v. Oosting, 245 F. Supp. 51 (D.C. Va. .

1965). If the longshoreman falls from the dock and

injures himself in the water, he is entitled to com-

pensation, because his injury occurred “upon navi-

gable waters.” Interlake S. S. Co. v. Nielsen, 338 F.2d .

- 879 (C.A. 6, 1964), cert. den. 381 U.S. 984, 85 S.

Ct. 1765; Marine Stevedoring Corp. v. Oosting, 238

F. Supp. 78 (D.C. Va. 1965). If, however, he falls

from the dock into the waters but injures himself by

striking a part of the dock while falling, he is not

covered, because the dock is an extension of land.

O’Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48

(C.A. 5, 1965). On the other hand, a longshoreman

injured upon a “skid” attached to a dock rather than

upon the dock itself can obtain compensation. because

the “skid” is not a fixed part of the dock, and so is

upon navigable waters. Michigan Mutual Liability

Co. v. Arrien, 344 F.2d 640 (C.A. 2, 1965), cert.

den. 382 U. S. 835. ; ; -

_ During debate in the House of Representatives

an.the bill for the Longshoremen’s and Harbor Work-

ers’ Act, Congressman LaGuardia, an “anchor man”

for the proponents, argued:

“This law simply gives the longshoremen the

‘> benefit of up-to-date legislation to cover injuries

sustained in the course of their employment.”

(Cong. Record 5414)

Can it be said that the decisions above give effect

_to that purpose? We think not. : ,

22

.At one time it might have been thought necessary,

as a matter of Constitutional construction, for the

lower courts to draw. distinctions of this kind in ad-

- ministering the Longshoremen’s and Harbor Work-

ers’ Act. But as now interpreted, the Constitution re- _

quires no such distinctions and where the. Constitu-

tion does not require ‘it, Congress should not be sup-

posed to have a purpose to emand these hypertech- ’

_nicalities of interpretation. As this Court said in

Reed v. S.S.. Yaka, 373 U.S. 410, 88 .S. Ct. 1849

(1963),. after repudiating a “blind adherence to the

‘superficial meaning of the statute”:

‘“‘We have previously said that the Longshore-

men’s Act i pre construed in con- —

formance with its pu and in a way which.

avoids harsh and i gruous results.’ ”

The interpretation we ask the Court to put upon the

Act gives effect, as in Reed, to the Congressional

purpose, while doing less violence than in’ Reed to

the “superficial meaning of the statute.”

CONCLUSION.

The issue presented by this petition for writ of

certiorari, as well as bythe petition in the case of

Andrew Nicholson v. C. D. Calbeck, No. 877 (Octo-

ber Term, 1967), and in the case of James D. McCol-

lough v. The Travelers Insurance Company,.et al, No.

788 (October Term, 1967), is of far-reaching impor-

tance to the administration of the Longshoremen’ Ss

‘and Harbor Workers’ Act and of concern to the thou-

23

sands of employees engaged in the vital and often-

_ times hazardous work of the docks. For the reasons

set forth above, this petition should be granted.

Respectfully submitted, —

EDWIN J. PETERSON |

RAYMOND J. CONBOY rays

Pozzi, LEVIN & WILSON .

Attorneys and Counsel for the

sheinaaneit John Houser