Brief for the Respondents in Opposition — Guillory v. Levingston Shipbuilding Co.

MAY 3 ° 1969

JOHN -F. DAVI6, CLERK,

NO. 1248 —

°

| Supreme Court nf “the United States

OCTOBER _— 1968

&

x ‘

JUNIUS GUILLORY, Petitioner

; Vv. |

LEVINGSTON SHIPBUILDING CO., Respondent

2

e

On Petition For A Writ of Certiorari To The Court

of Civil Appeals For The Ninth Supreme

Judicial District of Texas

BRIEF FOR RESPONDENT IN OPPOSITION

JouN D. Rrenstra, JR.

JOHN D. RIENSTRA

707 Beaumont Savings Building

Beaumont, Texas, 77701

Attorneys for Respondent:

Alpha Low Brief Co, M&M Bidg., Houston, Texas 77002

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ca x j eas : op 4

yee SUBJECT INDEX zi

a ' Page :

Reported,Opinion ..................... a, 1 :

ees ca es eats , an

Questions Presented .__. Le ee ge en eae 2

See Greed ....................... 2

Reasons for Denying the Writ............... 3-11

_ Applicability of Reed v. Yaka, 373 U.S. 410

ae (1963) and Jackson v. "Lykes Bros. a oh, -

‘ee EE OE oe ease —-3-6

Status of the vessel involved and nature of. the. |

work being sania sd Petitioner...._.. 7-11

Conclusion ..... ee ee ees ees 12

Proof of Service... etek iiteerses 12

Appendix A—33 U.S.C. 905, Longshoremen’s

and Harborworkers’ Compensation Act... . 13 4

Appendix B—Work Order... See ie re 14-16 :

INDEX OF AUTHORITIES

| ‘ CASES | | Page

Berge v. National Bulk Carriers Corp., 251 F. 2d

We A EE oe ek es cise. : 11

Desper v. Starved Rock Ferry Co., 342 U.S. 187

cf EE RRO aI te preg AS lin 8

Halapeska v. Callihan Interests, 371 S.W.2d 368

DPR Soe Ne oo a ets ag

Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731

| SRG SUE, SRS Rae Nana 3,4, 5, 6

Lawlor v. Socony-Vacuum Oil Co., 275 F.2d 599

(2nd Cir. 1960) SS as ee ee | 11

II

‘ : : ‘ CASES Page

Mitchell v. — Racer, 362 U.S. 539 (1960) ZF oe

Reed v. The Yaka, 373 U.S. 410 (1963) .....°3,4,5,6 -

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

ee | eer eee 6

Sandeéerlin v. Old Dominion Stevedoring Corp.,

385 F.2d 79 (Fourth Circuit, 1967). ....:... 6

‘Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) 3,5,+F

- Smith v. Henger, 148 Tex. 456 (1950) 5

United New York & New Jersey Sandy Hook

Pilots Ass’n v. Halecki, 358 U.S. 613 (1959) 2,10

Watson v. Gulf Stevedoring Co., 374 F. 2d 946

(Fifth Circuit, 1967). ..... SOG CNR inl a ree to Bee

West v. United States, 361 U.S. 118 (1959). = . 8,9

~ L

A

NO. 1248

' IN THE

Supe Gout of the Mute States

OCTOBER TERM, 1968

?

JUNIUS GUILLORY, Petitioner

, ;

LEVINGSTON SHIPBUILDING CO., Respondent

a4

On Petition For A Writ of Certiorari To The Court —

of Civil-Appeals For The Ninth Supreme

Judicial District of Texas

=

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- BRIEF FOR RESPONDENT IN OPPOSITION

OPINION BELOW,

The opinion of the. Court of Civil Appeals (Appen-

dix C of Petition) is reported at 433 S.W.2d 515.

JURISDICTION -

The jurisdictional requisites are adequately set forth

in the petition.

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2

QUESTIONS PRESENTED —

~ May an employee maintain a’ suit against his em-

ployer for injuries sustained ‘while working as a repair-

-man on board a vessel not under charter to said employer

or owned by him in view of 33 U.S.C. 905?

_Is “gas freeing” a vessel in drydock work traditionally

performed by seamen within the meaning of United New

York & New Jersey Sandy Hook Pilots Ass’n. v. Halecki, .

358 US. 613 (1959)? °°

Was the tug “Lou Ann Ellis” out of navigation at the

. time of Petitioner’s injury?

STATUTE INVOLVED

33 U.S.C. Sec. 905 “Longshoremen’s & Nasbiteiitennt

Compensation Act,” printed in Appendix A.

STATEMENT °

Petitioner, ‘ Junius’. Guillory, was injured when he in-

haled gas fumes while working on the tug “Lou Ann

Ellis”, then situated on a marine railway at Respondent’s

shipyard. Petitioner was an employee of Respondent who

was at all material times a subscriber under the Long-

» .

‘shoremen’s & Harborworkers’ Compensation Act, 33

U.S.C. Sec. Si, et seq., and t the Texas Employers’ Lia-

bility Act, — Rev. Civ. Stat. Ann., Article 8306

et seq.

The “Lou Ann Ellis” was owned by Harms Marine

Service, not a party to this suit, and had béen brought

to Respondent for general repairs,“the nature of which

are reflected by a work order reproduced herein as

Appendix B.

3

The jury found in response to special issues that Re-

spondent was negligent in failing to furnish Petitioner

with a gas mask (Tr. 23), and that the “Lou Ann mal

was unseaworthy. (Tr. 25-26). |

After the verdict of the jury was returned, the trial

court entered judgment for Respondent non obstante

veredicto (Tr. 35), upon all of. the grounds urged in

Respondent’s. Motion ( Tr. 30-33).

Petitioner brought this suit upon the theory that Re- -

spondent’s control of the “Lou Ann Ellis” for. the purpose

of making repairs placed Respondent in the legal position

of the owner of the vessel.

ARGUMENT

1. Reed v. The Yaka, 373 U.S. 410 (1963) and .

Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731 (1967)

are not applicable to the facts of this case.

The sole reason advanced by Petitioner for granting,

certiorari in this case is that Respondent owed him a mari-

time duty under this Court’s decisions in Reed v. The

Yaka, 373 U.S. 410 (1963) and Jackson v. Lykes Bros.

S.S. Co., 386 U.S. 731 (1967), notwithstanding the

plain language of 33 U.S.C., Sec. 905, and despite the fact

that .Respondent at no time had. any ownership interest

in or operational control of the “Lou Ann Ellis.”

At least since Seas Shipping Co. v. Sieraki, 328 US.

85 (1946), owners and charterers of vessels have owed

a maritime duty to shoreside workers doing the ship’s _

‘service.

‘And in Reed v. Yaka, 373 US. 410 (1963) and

Jackson v. Lykes Bros. §.S. Co., 386 U.S. 731 (1967) |

SLE ENURE,

SAA orto ES

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this duty was imposed notwithstanding Sec. 905 of the

Longshoremen’s & Harborworkers’ Compensation Act, on

the basis that it was not the intention “of Congress in

enacting that statute to deprive men doing the ship’s

service of their maritime remedies merely because the

owner of the vessel was coincidently their employer.

But here, unlike Yaka and Jackson, Respondent’s sole

‘connection with the “Lou Ann Ellis” was by virtue of an

agreement with her owners to make certain repairs. Re-

*spondent neither owned. the vessel, had her under lease

or charter, nor had any operational interest at all in the

- vessel. This Court said in Reed v. The Yaka:

“* «© * full possession and control of the vessel

are delivered up to the charterer for a period of time.

The ship is then directed by its master and manned

by his crew; it makes his voyages and carries the

cargo he chooses. Such services performed on board

the ship are primarily for his benefit.” 373 U.S. at

412.

With respect to the “Lou Ann Ellis”, Respondent

manned it with no crew, made no. voyages and carried no

cargo. Indeed, the services performed pursuant to the work

order were not for Respondent’s benefit, but were solely

for the benefit of Harms Marine Service, the owner.

Under such circumstances, Respondent owed no mari-

time dfities.with respect to the tug. In the usual case these

duties—seaworthiness and due care—are solély those of

the owner or operator of the vessel, and as to seaworthi-

ness, the duty is nondelegable and can not be discharged

by temporarily surrendering control of the vessel to

another.

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In Yaka this Court observed that had a nonemployee

stevedore been injured under the same circumstances as

was Reed, such. stevedore could clearly. have recovered

under Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946)

and its progeny. But under the facts here, such stevedore

would have no cause of action against Levingston under

“the seaworthiness doctrine for the reason that, Levingston’

having no operational interest in the vessel, vould owe no

such duty.

, In such a situation, the injured workman would have

a cause of.action against Levingston which would be

governed by the traditional common law rules applicable

to invitees injured on the premises of another. See e.g.,

Smith v. Henger, 148 Tex. 456 (1950); eMalapeska v.

Callihan Interests, 371 S.W.2d 368 (196

In Yaka and Jackson, the Court relied on the fact that

“~it would be harsh to “distinguish between liability to

‘longshoremen injured under precisely the same circum-

stances because some.draw their pay directly from a ship-

owner and others from a stevedoring company doing the

ship’s service”. 373 U.S. at 415. In the instant case,

_ however, if the Longshoremen’s & Harborworkers’ Com-

pensation Act did not exist at all, there would be no

distinction as to liability or remedy; and the effect of the

Lorgshoremen’s & Harborworkers’ Compensation Act is

not, as in Yaka, to cut off a maritime remedy, but to

eliminate one that previously existed at common law sub-

ject to the corresponding defenses of fellow servant and

assumed risk. : .

Moreover, to extend Yaka to a situation such as this

- would plainly destroy Sec. 905 of the Longshoremen’s &

Harborworkers’ Compensation Act. It is true of course

that the protection afforded by that Section is less than -

6

complete in light of Ryan Stevedoring Co. v. Pan Atlantic

S.S. Co., 350 U.S. 124 (1956) and Reed v. Yaka, 373

U.S. 410 (1963). But to. say that control of the vessel

alone places a ship repair company in the position of.an

owner would clearly render Sec. 905 an empty shell; for

most, perhaps all stevedore and repair companies take

“control” of the vessel for the purpose = doing their

work.

If nonoperational “control” is sufficient to impose mari-

time obligations, it is difficult to see why a longshoreman

engaged in loading or unloading a vessel could not like-

wise recover directly against his employer.

A’ship repair company, it must be noted, is given con-

trol of a vessel for the express purpose.of making such

vessel seaworthy, and repairs are made to the end that

the owner’s absolute and nondelegable, duty will be dis-

charged. Mitchell v. Trawler Racer, 362 U.S. 539 (1960).

It would indeed be strange if the shipyard engaged to

do the work could be held. responsible for the very con-

ditions that it is called upon to correct by virtue of its

contract with the vessel owners.

The Petition for Writ of Certiorari should be denied.

This case does not involve the allocation of losses between

the shipping industry and stevedore companies as was true

in Sanderlin v. Old Dominion Stevedoring Corporation,

385 Fed.2d 79 (Fourth Circuit, 1967), but involves the

duties owed by a ship repair company to its employee.

Absent the considerations present in Reed v. Yaka, 373

U.S. 410 (1963) and Jackson v. Lyke’ Brothers S.S. Co.,

386 U.S..331 (1963), these duties are and should be |

controlled by 33 U.S.C., Sec. 901, et seq.’

1. Indeed, in Watson v. Gulf Stevedoring Company, 374 F.2d 946 .°

(Sth Cir. 1967, Certiorari denied 389 U.S. 927 (1967, recovery was

7

2. PETITIONER WAS NOT ENGAGED IN WORK

TRADITIONALLY PERFORMED BY.SEAMEN, NOR

WAS THE “LOU ANN ELLIS” IN NAVIGATION

AT THE TIME OF HIS INJURY.

The “Lou Ann Ellis” was brought to the Levingston

yard on September 6, 1966, for major repairs (S.F. 88-89,

91). The work order, which was introduced into evidence

(S.F. 180) provided in. part:. | .

“Furnish labor and facilities to drydock vessel for

underwater examination and repair..Hold on dock ~

vessel. * * * Furnish labor and equipment to crop

propeller nut keepers, remove propeller from vessel.

* * * Furnish labor and facilities to disconnect port |

rudder at quadrant. Drop rudder and transfer to

machine shop. * * * Furnish labor and equipment

to break inboard couplings and unship port pro-

peller shaft.” : |

The tug was hauled out of the water on a marine rail-

_way. on September 8, 1966; the repairs were completed

and the tug was placed back into navigation on Septem-

ber -10,- 1966 (S.F. 94). While on the ways, none of

the tug’s crew was aboard, and none of them assisted

in the repair work.

Whether, as here, a shore based worker is seeking a

maritime remedy under Seas Shipping Company v. Sieracki,

— 328 US. 85 (1946) and its progeny, or a member of

the crew seeks damages under the Jones. Act, the vessel

lipon which the injury occurs must be in navigation. —

denied an employee in a suit against his employer who was loading

cargo aboard a vessel owned by a third party. There the Court noted

that 33 U.S.C. Sec. 905,-was a complete defense and that thé em-

, Ployee’s sole and exclusive remedy was against the vessel owner.

BPA ERLE YI LI TE

” ’ 0% 8

Desper v. Starved Rock Ferry Co., 342 US. 187 (1952);

West v. U. S., 361 U.S. 118 (1959). °

_ For example, in Desper v. Starved Rock F erry Co., the

injured plaintiff was engaged in preparing sightseeing

motor boats for launching. These vessels were used on

‘a seasonal basis and withdrawn from navigation in the

winter. In a suit under the Jones Act, the Supreme Court

held that inasmuch as.the plaintiff was not injured while

performing duties aboard a vessel in navigation, he was

not a seaman and therefore could not recover. The Court

reasoned that the Jones Act gave a eee only under

circumstances where the injured party was a “seaman” in

the sense that he was one who is exposed to the traditional

perils of the sea. When a vessel is withdrawn from navi-

gation even temporarily, seamen traditionally no longer

have any duties to perform with respect to it.

Again in West v. United States, 361 U.S. 118 (1959)

the Court emphasized that maritime remedies extended

only to those engaged in seamen’s work. In that case,

_ the injury occurred upon a ship that had been withdrawn

from navigation but during preparations to restore her to

service. In denying recovery under the maritime law, the

Court used the following significant language which is

_ particularly appropriate to the case at bar:

“It is evident that the sole purpose of the ship’s

being at Atlantic’s repair dock at Philadelphia was

to make her seaworthy. The totality of the reparation -

of the vessel included compliance with the hundreds

of specifications in the contract calling for the re-

pairing, reconditioning and replacement where neces-

sary of equipment:so as to make fit all the machinery,

‘equipment, gear and every part of the vessel.

gy

s-

Strangely, enough, fhe defective water line and the

metal plug specifically pointed to by petitioner as

being - defective were listed in the specifications for

‘cleaning and repairing’ and the ‘replacement of all

299

defective or missing plugs.

ms a ae

“On the other hand, the vessels involved in the

cases depended upon by petitioner were, at the time

of the injuries, in the hands and under the’ control of

the owners or charterers and, instead of undergoing

general repairs, were-in active maritime service in

the course of loading or unloading cargo pursuant to

voyages. The workmen; like the seamen, depended

upon the seaworthiness of the ships, their equipment

'and gear. They were obliged to work with whatever

the shipowners supplied and it was only fair for the

latter to be subjected to the absolute warranty that

the ships were seaworthy.” 361 U.S. 118, 121.

£

The. “Lou Ann Ellis”, on the occasion madé the hasis

of this suit, was as “dead” as the vessel in West v. United .-

States, 361 U.S. 118 (1959). As the work order reflects, °

the repairs to this tug necessitated not only the drydock-

ing of the vessel, but the removal of the rudder and pro-—

pellers. It is indeed difficult to imagine a_situation where a

ship is more manifestly withdrawn from navigation than

was the case here. Moreover, .one of the very purposes

for which the “Lou Ann Ellis” happened to be at Leving-

ston was to make her seaworthy, and in addition to other

repairs.the vessel was to be gas fteed and a certificate to

that effect furnished: to the owner.

Nor awvas Guillory engaged in work traditionally that of

a seaman, which, as-hereinafter noted is a prerequisite for

¢ recovery under either Sieracki or Yaka. Seamen do not

PPPS EAT

TOTES

S ssid Rc PA te VA nwo aoe >

10

now and never did work on vessels which were placed

in drydock and stripped of the means of propulsion and

steerage. The repair work done on the “Lou Ann Ellis”

was the type of work that could only be performed while

the vessel was out of navigation. and thus incapable of

any voyage. | :

In United New York and New Jersey Sandy Hook Pilots

Association v. Halecki, 358 U.S. 613 (1959) _ the pilot

boat New Jersey was brought to the shipyard of Roder- .

mond Industries, Inc. for its annual overhaul. Among other

things, the ship’s generators had to be dismantled and

sprayed with carbon tetrachloride, and during this opera-

tion Halecki, a shore based electrician, became ill and died |

from carbon tetrachloride poisoning.

Suit was brought against the owners: of the vessel alleg-

ing unseaworthiness and negligence. In denying recovery

the Supreme Court held that Halecki was not doing work

traditionally done by the ship’s crew and in this regard

placed particular emphasis on the status of the vessel...

“The work that he did was in no way ‘the type of

work’ traditionally done by the ship’s crew. It was

work that could not even be performed upon a ship

ready for sea, but-only when the ship was ‘dead’ with

its generators dismantled. Moreover, it was the work

of a specialists requiring special skill and special

equipment—portable blowers, air hoses, gas masks, —

and tanks of carbon tetrachloride, all brought aboard

the vessel for. this special purpose, and none con-

nected with a ship’s seagoing operations.”

* * e *

“It avails nothing to say that the decedent was an

‘electrician,’ and that many modern ships carry elec-

tricians in their crew.

11

~ Pope & Talbot, Inc..v. Hawn explicitly teaches that

such labels in this domain are meaningless. See 346

U.S. at 413. It is scarcely more helpful to indulge ‘in

the euphemism that the decedent was ‘cleaning’ part

_ of the ship, and to say that it is-a traditional duty of

seamen to keep their ship clean. The basic fact is, in

the apt words of Judge Lumbard’s dissenting opinion,

. in the Court of Appeals, that the decedent ‘was not

doing what any crew member had ever done on this

ship or anywhere else. in the world so far as we are

informed.’ ” 358 U.S. 613, 617-618.

i

It therefore seems clear that inasmuch as Guillory was

injured while working on a vessel that was not in naviga-

tion at the time and while doing work not traditionally ©

done by seamen, to-wit, gas freeing the ship, he can no

more recover than could Halecki, who was doing similar

work.

Lawlor v. Socony-Vacuum Oil Company, 275 Fed.2d '

599 (2nd Cir. 1960) relied upon by Petitioner is easily

distinguishable: For one thing, the vessel involved in the

_._ Lawlor case was anchored. in navigable waters at the time

the plaintiff was injured. Moreover, the vessel had a full

crew of officers and men aboard, and the claimant, being

engaged in repairing leaks, was quite clearly doing work ©

traditionally performed by seamen. See in addition Berge

v. National Bulk Carriers Corporation, 251 Fed.2d 717

(2nd Cir. 1958).

PO TEEN LOL IPL MEME NN

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CONCLUSION

For the above and foregoing reasons it is engren|

submitted that this Petition for a Writ of Certiorari should

be denied.

- Respectfully submitted,

JouN D. RIENSTRA, JR.

JoHN D. RIENSTRA

07 Beaumont Savings Bldg

Beaumont, Texas 77701

Attorneys for Respondent

PROOF OF SERVICE

I, John D. Rienstra, Jr., attorney for Respondent and ©

a member of the Bar of the Supreme Court of

the United -States, hereby’ certify that I have. served

copies of the foregoing Brief in Opposition to the Granting

of a Petition for Writ of Certiorari upon Mr. Wiley B. .

Thomas, Jr., P.. O. Drawer U, Angleton, Texas, and

Mr. John H. Seale, P. O. Box 480, Jasper, Texas, Attor-

neys for Petitioner, by mailing three copies the hn pen

postage prepaid and property addressed, on this A= da

of May, 1969.

“

j

// John D. Rienstra, Jr.

Attorney for Respondent

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APPENDIX A

~ SECTION 905. EXCLUSIVENESS OF LIABILITY

The liability of an employer prescribed in Section 904

. Of this title shall be exclusive and in place of all other

liability of such employer to the employee, his legal 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 by this .

chapter, an injured employee, or his legal representative in

case death results from the injury, may elect to claim com-

pensation 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

assumed the risk of his employment, nor that the injury

was due to the contributory negligence of the. employee.

Mar. 4, 1927, c. 509, Sec. 5, 44 Stat. 1426.

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14

APPENDIX B as

HARMS MARINE SERVICE 9-9-66

TUG “LOU ANN ELLIS” . 2

JOB 1462

1. Drydock:

Furnish labor & facilities to drydock vessel for under

‘water examination and repair. Hold on dock for com-

pletion of underwater work and undock vessel.

Propellers:

Furnish labor & equipment to crop propeller nut

keepers, remove propeller nuts and unship port &

stbd. propellers from ‘vessel to Levingston Shipbuild-

-ing Company truck for transportation to L. L. Walker,

in Houston. Propellers to be repaired for owners ac-~ .-

‘ count. Dial indicate port & stbd. propeller shafts and

report findings to owners. Pick up propellers in Hous-

ton. Drill pull bolt holes. Deliver to vessel and rein-

stall as ‘original. Harden up propeller nuts & install

flat bar. keepers.

Weakley

1462

[HARMS MARINE SERVICE

TUG “LOU ANN ELLIS” -9-9-66

J OB 1462 hat

3. Port Rudder: | ;

Furnish labor & facilities to diséonnect port rudder

at quadrant. Drop rudder & transfer to machine shop.

Crop rudder blade, chuck’ in lathe and straighten

i ‘stock. Add approx 10” to lower énd of rudder stock

and weld out. Reinstall rudder blade as original and

connect up to quadrant.

&

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4

4. Rudder Shoe & Gudgeon:

Furnish labor and material to crop & renew lower

angle on rudder shoe approx. 6 X 3 X % X-5/-0".

Fabricate rudder shoe extension from after strut to

rudder. Machine new gudgeon and install .on shoe

to suit rudder pintle.

5. Packing Glands:

Furnish labor & material to aa port & stbd. stern

tube packing —

Weakley

... 1462

HARMS MARINE SERVICE.

TUG “LOU ANN ELLIS” 9-9-66

JOB 1462

6. Port & Stbd. Engines:

- Furnish labor & material to align and resecpre, port

& stbd.’engines on foundations using fitted bolts. —

JL Gasfree:

Furnish labor & facilities to pump water from after

void. Washdown & cannes after void: & after fuel

tank for hot work.

8. Gasfree Certificate:

Furnish services of certified chemist to check vessel

and issue necessary certificate for required hot work.

9. Misc. Fractures & Doublers:

- Furnish labor & material to gouge & weld miscel-

laneous fractures at stern of vessel including struts

and install doublers where necessa;y.

Weakley

1462

HARMS MARINE SERVICE | aS

TUG “LOU ANN ELLIS” 9-9-6

. JOB 1462

10.

Weakley

HARMS ‘MARINE SERVICE

16

Blast & Paint:

Furnish, labor & material to sandblast vessel from

keel to (waterlin®,, Furnish and apply two (2) coats

silver primocon & one (1) coat super tropical #2 |

antifouling. °

1462

TUG “LOU ANN ELLIS” 9.9.66

JOB 1462 | | a

i's

} bY

3.

Assist Radar Installation:

Furnish 'abor to assist in installation of radar unit

as requested.

Zinc Pads On Fernstrom Coolers: :

Furnish labor & material to renew zinc pads on fern-

strom coolers as requested by owners representative.

Shaft:

Furnish labor & equipment to break inboard coupling ;

and unship port propeller shaft. Accept delivery of

Owners spare shaft and install as original. (Note——

Item #9 covers repacking | of ares

ene

1462