# Petition for Writ of Certiorari — Tidewater Construction Corp. v. Duke

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 938

## Text

2y, LIBRARY. |
UPREME COURT, U. S. owe “9

BRIEF AND APPENDIX OF PETITION

IN THE

« 7
Supreme Court of the United States
OCTOBER TERM, 1969

Record No. °C

TIDEWATER CONSTRUCTION CORPORATION,
individually and as one of three joint
, venturers trading as TIDEWATER-RAYMOND-KIEWIT,

RAYMOND INTERNATIONAL INC;
individually and as one of three joint
venturers trading as TIDEWATER-RAYMOND-KIEWIT,

PETER KIEWIT SONS’ Co.,
individually and as one of three joint
venturers trading as TIDEWATER-RAYMOND-KIEWIT,
Petitioners,

Ss Vv. |

EDWARD E. DUKE,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF APPEALS OF VIRGINIA

~

R. ARTHUR JETT
ROY L. SYKES

JETT, SYKES & BERKLEY
701 Citizens Bank Building
Norfolk, Virginia °
Counsel for Petitioners

ES EE ES, EE a a I LE TE TT ETS SE EEN EID
PRINTED BY TEAGLE @ LITTLE, INC., NORFOLK, VA.

INDEX TO PETITION

Page
I. CITATION TO OPINYON.............. 1
II. BR SE ys 1 SER atte Set ae TI ESL SU, LRT ry ts 2
| Ill. QUESTION PRESENTED : 2
eee ps | y er 7 ak 2
REASONS FOR GRANTING THE WRIT............... 5
WE” MONCLBMON 15
Vil. CERTIFICATE OF SERVICE... 15
INDEX TO APPENDIX
Appendix A

Longshoremen’s and Harbor Workers’ Compensation
Act, Title 33 U.S.C.A. Section 901, et seq. Fe la
Jones Act, Title 46 U.S.C.A. Section 688... la

Appendix B

Opinion of the Supreme Court of Appeals of Virginia...... 2a
Order of the Supreme Court of Appeals of Virginia _
staying execution of judgment... 15a

Order of Supreme Court of Appeals of Virginia
denying a petition for rehearing filed by the Plaintiffs
kA ie are iciatlsdadaitclepa tinted Mactabtnisantootier cae 17a

TABLE OF CITATIONS

Cases:
as Page

Antus v. Interocean S.S. Co., .

(C.C.A. 6, 1939) 108 F.2d 185 12
Desper v. Starved Rock Ferry Company, i

(1952) 342 U.S. 187, 72 S.Ct. 216...................- 11, 12, 14
Gonzales v. United States Shipping Board Emergency

Fleet Corp., (DCEDNY, 1924) 3 F.2d 168................ 11
Hawn v. Amercian S.S. Co., ;

(C.C.A. 2, 1939) 107 F.2d 999_.............. wk be 8S, 34
Kissinger v. United States, (DCEDNY, 1959)

I I ces Ceeieeiesinlienng ease ccoetencaiionee 14.
Krolezyk v. Waterways Navigation Co., (DC Mich,

NE PN, I wissen Snieenposacbnckicenssehconoon lenin esaiend 11
Maloney v. State of New York,

141 N.Y.5.20 207,. affd S$ N.Y.2d S66......::.......2-... 11
Norton v. Waxuyer Co., (1944) 321 U.S. 565, 64 S.Ct. 747.17

Perez v. Marine Transport Lines Inc.,

(D.C.La. 2058)\i60 F.Supp. 866.............::...-..-.......... 11
Roper v. United States, et al,
(1961) 368 U.S. 20, 82 S.Ct. 5 11, 18, 14
Seas Shipping Co. v. Sieracki,
(1946) 328 U.S. 85, 66 S.Ct. 872 13
. Seneca Washed Gravel Corp. v. McManigal,
(C.C.A. 2, 1933) 65 F.2d 77 ....11, 12
Union Carbide Corp. v. Goett, (C.C.A. 4, 1958)
256 F.2d 449 : 14
West v. United States, (1959) 361 U.S. 118,
Se Ss | Ree 13, 14
Statutes:

Longshoremen’s and Harbor Workers’ Compensation
Act, Title 33, U.S.C.A., Section 901, 902 ‘(8)........ 3, 4, 5

Jones Act, 46 U.S.C.A., Section 688......................-.. siaaaaaed 14

: xe?
a Uw

7 IN THE
Supreme Court of the United Dtates

_ OCTOBER TERM, 1969

Record No. es |

TIDEWATER CONSTRUCTION CORPORATION,
individually and as one of three joint
venturers trading as TIDEWATER-RAYMOND-KIEWIT,
RAYMOND INTERNATIONAL INC., |
individually and as one of three joint
venturers trading as TIDEWATER-RAYMOND-KIEWIT,

PETER KIEWIT SONS’ Co., ©
individually and as one of three joint
venturers trading as TIDEWATER-RAYMOND-KIEWIT,

Petitioners,

Vv.

Ebwarp E. Du KE,
Respondent.

PETITION FOR WRiT OF CERTIORARI TO THE
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioners pray that a Writ of Cértiorari issue to
review the judgment of the Supreme Court of Appeals
of Virginia entered in the above entitled case on October

14, 1969.

|. CITATION TO OPINION BELOW

The opinion of the Supreme Court of Appeals of
Virginia, printed in Appendix B hereto, infra, p. 2a,
is reported in 210 Virginia Reports 143.

l (

I IE MB BAI DIA A EPROP REALS

ll. JURISDICTION |

Judgment was entered on October 14, 1969.
Rehearing »was denied, Appendix B hereto, infra, p.
17a. An Order Staying Execution of Judgment was
entered on November 17, 1969, Appendix B hereto,
infra, p. 15a. The’ jurisdiction of this Court is in-
voked under. Title 28 United States. Code Annotated
Section 1257(3) because the Supreme Court of Appeals;
of Virginia has here decided a federal question of sub-
stance contrary to the applicable decision of this Court,
Rule 19(1)(a) of the Revised Rules of the Supreme
Court of the United States adopted April 12, 1954.

Ill. QUESTION PRESENTED

The primary question to be decided is whether a
shoreside mechanic, injured while working upon a ves-

_ sel owned and operated by his employer, can recover

from his employer for unseaworthiness or Jones Act
negligence, where the vessel is out of service at the
time of the accident.

IV. © STATEMENT
For the sake of clarity, the parties will be herein-

after referred to by their designations in the courts

below, i.e., the respondent as plaintiff and the petitioners
as defendants.

The plaintiff instituted suit in the amount of One
Hundred Fifty Thousand ($150,000.00) Dollars in the
Corporation, Court of the City of Chesapeake, Vir-
ginia, alleging pérsonal injuries arising out of an
accident which occurred on the 23rd day of April, 1966
aboard a work barge owned by the defendants then
afloat in the Southern Branch of the Elizabeth River
in the State of Virginia. At the time of the accident
the said work barge had been out of service for approxi-
mately eight months and plaintiff who was employed

2

Nw

as a shoreside mechanic’by the defendants was aboard
said work barge .for the purpose of overhauling her
machinery prior to her return to service. The said
overhaul had been going on for approximately five
weeks prior to plaintiff's injury and continued for ap-
proximately one week thereafter. co

a

.

The plaintiff alleges that he was a seaman and a
member of the crew of said work barge at the time
of his accident. Predicated upon said allegations he
asserts a first cause of action in negligence under Title
46 United States Code Annotated, Section 688, com-
monly known as the Jones Act and a second cause of
action under the general admiralty law alleging that
said work barge was unseaworthy, either or both of
_ which caused or contributed to his accident. |

- The defendants filed a Plea in Bar to the Jurisdic-
tion of the Subject Matter alleging that the plaintiff
was not entitled to maintain his suit in negligence
under the Jones Act because (1) he was not a mem-

ber of the crew of said work barge since said work ~

barge then had no crew, and (2) he was aboard said
work barge as a shoreside mechanic performing work
not traditionally performed by a member of the vessel’s
crew; and<further alleging that the plaintiff is not. en-
titled to maintain his suit under the general admiralty
law for unseaworthiness because said work barge was
out of service at the time of plaintiff's accident and for
that reason plaintiff was not entitled to a warranty of
seaworthimess; and still further, that if the plaintiff is
not entitled to maintain his action under the “Jones Act”
and is not entitled to maintain. his aétion under the gen-
eral admiralty law: for unseaworthiness then his sele
remedy is compensation under the Longshoremen’s and
Harbor. Workers Compensation Act and he is without
recourse to an action at law.

5 Hm

aw

The defendants moved the Court to hear and dis-
pose of their Plea in Bar to the Jurisdiction of the
Subject Matter by impaneling a jury for-the sole pur-
pose of hearing and determining whether the plaintiff
was a seaman and whether said work barge was out
of navigation at the time of plaintiff's accident. The
Court refused to impanel a jury for said purpose and
ruled that’ the status of the plaintiff and the status of
the work barge at the time of plaintiff's accident could
be determined by the Court and jury at one trial. Thus
said issues were reserved for disposition.at the time of

trial on the merits. Thereafter the Court took no fur-

ther action with regard to defendants’ Pleain Bar to
the Jurisdiction of the Subject Matter and has never
passed thereon.

The defendants in due time filed their answers
wherein they’ deny any negligence on their part and

' further deny that said work barge was unseaworthy

in any respect. The defendants further allege that the
plaintiff. was guilty of negligence and wrongdoing
which was the sole proximate cause of his accident
and still further allege that plaintiff's acceptance of
compensation under the Longshoremen’s and Harbor
Workers’. Compensation Act in the sum of Two Thou-
sand Nine Hundred and Seventy ($2,970.00) Dollars
constifutes an accord and satisfaction of his claim against
the defendants. This latter defense was never—passed

upon by the Court. ;

The case was heard ‘over a four day period begin-
ning on October 31, 1967 and ending on November 6,
7. At that time the jury returned a verdict in favor
the plaintiff in the amount of Ninety-five Thou-
mi ($95,000.00) Dollars against the defendants, The
defendants. moved the Court to set aside the verdict
as being contrary to the law and evidence and enter

4

final judgment in their favor. These motions were set
down and heard on November 30, 1967, at which time
the Court overruled the motions and entered final judg-
ment against the defendants in accordance with the jury
verdict, to all of which the defendants .duly excepted.

The Supreme Court of Appeals of Virginia af-
firmed the Trial Court and entered its judgment on
October 14, 1969.

V. REASONS FOR GRANTING 7HE WRIT

The plajntiff was allowed to go to the jury on two
causes of action, namely (1) an alleged cause of action
for unseaworthiness and (2) an alleged cause of action
under the Jones Act for negligence.

As to (1) above, if the vessel was out of service
at the time of plaintiff’s injury, there was no warranty
of seaworthiness.and said cause of action must fall.

As to (2) above, plaintiff is here suing his employer
and is entitled to do so only if he can bring himself
within one of the exemptions found in the Longshore-
men’s and Harbor Workers’ Compensatidn Act, Title
33, United States Code Annotated, Section 901, et seq.

He attempts to do so by alleging that he was a member |

of the crew of said vessel which exempts him from the
provisions of said act, Section 902(3). However, if the
vessel was out of service-it had no crew and said cause
of action must also fall. , ~

Thus it is obvious that the primary question that had
to be decided by the jury and by Appellate Court 1s
whether the vessel was out of service at the time of
plaintiff's injury.

Ur

pO, eae

Ae SOE MPL ee reas. ©

For if the vessel was out of service at the time of
plaintiff's injury, he has no cause of action either for
unseaworthiness or Jones Act negligence.

Since the jury and the Appellate Court permitted
plaintiff to recover, we must conclude that the jury and
the Appellate Court determined that the vessel was in
service at the time of plaintiff’s injury. Such a deter-
mination is unwarranted under the uncontradicted facts
_ of this case. Let’s take a look at the uncontradicted facts
as set forth in the Opinion of the Appellate Court.

“The plaintiff first went to work for the de-
fendants about March 1, 1965, when they were
preparing the Big D for service in construction
of the Chesapeake Light Station about thirteen
miles offshore from Virginia Beach. During that
construction plaintiff worked as a mechanic, look-
ing after the air compressors, jacks and other.
machinery. :

Plaintiff introduced a cardboard model of the
Big D which he had made and explained to the
jury the structure of the barge and some of its
equipment, pointing out its four generator units
which supplied the air for operating the spuds
and grippers on the vessel. The barge was not
self-propelled but was towed to the work site
where it was to be used. It carried four anchors
for use to hold the barge in place at the work site
and these anchors were operated by the workmen
on the barge. It was arranged so that its crew
could eat and sleep on it.

During his employment on the barge at the
Chesapeake Tower, the plaintiff was told that his
work was satisfactory and that he would be em-

6

ployed on the next job, which was the construc-
tion of the Diamond Shoals,Light Tower. The
defendants had contracted in or before December
1964 to do that work and expected to use the Big
D on the job. The Chesapeake Tower job was
completed in July 1965 and plaintiff was then
assigned to another job at Yorktown. He was
then told, he said, that when the Yorktown work
was finished ‘we’ would come back and make the
Big D ready for sailing.

On March 14, 1966, plaintiff resumed his em-
ployment by the defendants and began helping to
get the Big D ready for the Diamond Shoals job.
_ The Big D was then afloat in the Elizabeth River,
secured by lines running from the stern, from the
bow and from the center. It was boarded by means
of a gangplank.

The plaintiff testified that the crew then on
the Big D was practically the same as had been on
the Chesapeake Tower job. They were, he said, a
fireman, an ‘operator,’ the deck crew men called
the riggers, who were also the pile driving men,
and a Mr. Warren. Plaintiff was hired as a me-
chanic and his work was maintaining the equip-
ment on the deck of the barge. Their purpose was
to put the barge in order for the work ahead at
Diamond Shoals.

When the Chesapeake job was completed,
parts of the equipment of the barge were taken
off and stored for protection and preservation.
The master mechanic, under whom the plaintiff
worked, said the vessel was ‘winterized’ for the
winter. On March 14, 1966, defendants began to
prepare the Big D for the Diamond Shoals job,

7

which was due to be completed on May 1, 1966.
This preparation required a lengthening of the
spuds, certain electrical work and a general over-
hauling of the equipment. This work required
about six weeks and was within a week of being
completed when plaintiff suffered his injuries.

J When plaintiff came aboard on Saturday, the
day of the accident, the spuds were ready. to be
set in position and at the time of his injuries all
four had been set. On that morning he had been
told they were ready for him to hook up the jacks
so the air could be applied to the grips and the
equipment tested over the weekend to make the
vessel ready for sailing. The cook had come
aboard and supplies were being brought on the
barge.

At the time of the accident the plaintiff was
engaged in hooking up the fourth spud when he
slipped and fell on grease which had been allowed
to accumulate on the deck where he was required
to work. In falling he knocked open a high pres-
sure air valve which released high pressure air
through the hose he was holding, causing him to
lose control of the hose. It whipped around un-
controlled on the deck and struck the plaintiff,
resulting in a severe fracture of his leg. He has
been able to work only occasionally since.”

From the foregoing uncontradicted facts recited in
the Opinion of the Appellate Court it should be obvious
that the vessel was out of service at the time of plaintiff’s
injury. However, for emphasis we rgfer specifically to
the following pages of said Appellate Opinion:

Page 4

“He was then told, he said, that when the York-
town work was finished ‘we’ would come back and
make the Big D rendy for sailing.”

Page 5 3
“On March 14, 1966, plaintiff * * * began help-
ing'to get the Big D ready for the Diamond
Shoals job.”

Page 5

“Their purpose was to put the barge in ree for
the work ahead at Diamond Shoals.”

Page 5

“When the Chesapeake job was completed, parts
of equipment of the barge were taken off and
stored for protection and preservation.”

Page 5

“The master mechanic, under whom the plaintiff
worked, said the vessel was ‘winterized’ for the

- winter.”

Pages 5 and 6

- “On March 14, 1966, defendants began to prepare
the Big D for the Diamond Shoals job, which |
was to be completed on May 1, 1966. This prep-
aration required a lengthening of the spuds, cer-
tain electrical work and a general overhauling of
the equipment. This work required about six .
weeks and was within a week of being completed
when plaintiff suffered his injuries.”

POPU RA ee FR GR VEEw

~~ Page 6
“On that morning he had been told they were
ready for him to hook up the jacks so the air
could be applied to the grips and the equipment
tested over the weekend to make the vessel ready
for sailing.”

Page 6

“At the time of the accident the plaintiff was
engaged in hooking up the fourth spud when he
slipped and fell on grease which had been allowed
to accumulate on the deck where he was required
to work.” \

Phrases such as. . . making the Big D ready for
sailing, .. . helping to get the Big D ready, .. . put the
barge in order, . . . parts of equipment were taken off
and stored, .. . the vessel was winterized for the winter,
... defendants began to prepare the Big D for the Dia-
mond Shoals job, . . . this preparation required a length-
ening of the spuds, certain electrical work and a gen-
eral overhauling of the equipment, . . . this work re-
quired about six weeks and was within a week of being
completed when plaintiff suffered his injuries, . . . at the
time of the accident the plaintiff was engaged in hooking
up the fourth spud, .. . all connote that the vessel was out
of service and was then being returned to service.

Do the legal authorities support our conclusion that
the vessel was out of service at the time of plaintiffs
injury. We think they do. ;This Court’s attention is
directed to the textbook entitled Norris on Maritime
Personal Injuries, (2nd Ed., 1966) Section. 52 page 118,
wherein it is stated.

“As was said by Judge Hoffman in Roper v.
10

United States,'* ‘a ship may be considered in
navigation for the purpose of applying navigation
laws, but not in navigation for the purpose of
determining the shipowner’s liability for injury
to persons claiming the rights of a seaman.’ Ves-
sels drawn up on land;'% Jaid up for the winter,
placed in a laid up fleet or in lay-up'* can be said
to be withdrawn from navigation.” ee
(Emphasis ours)

12—Roper v. United States, 170.F Supp 763 (DC Va 1959) affd,
(1961) 368 US 20, 7 L ed 2d 1, 82 S Ct 5, 1961 AMC 2499.

13—Desper v. Starved Rock Ferry Company (1952) 342 US 187,
96 Led 150, 72S Ct 216, 1952 AMC 12.

14—Seneca Washed Gravel Corp. v. McManigal, 65 F2d 779,
1933 AMC 1387 (CCA2d 1933); Gonzales v. United States Ship-
ping Board Emergency Fleet Corp., 3 F2d 168, 1925 AMC 177
(DC ED NY 1924).

In said connection this Court’s attention is also di-
rected to the textbook entitled Norris on The Law o;
Seamen (2nd Ed., 1962) Section 665 pages 804, 805

wherein it is stated:

~

“Since one of the essential elements in estab-
lishing the status of ‘seaman’ is that the vessel
be in navigation, it follows that the Jones Act:
remedy cannot be applied if the vessel, at the
time of injury, is out of navigation."

14—Hawn v American S.S. Co., 107 F2d 999, 1940 AMC 120
(CCA2d 1939); Krolezyk v Waterways Navigation Co., 151 F Supp
873, 1958 AMC 379 (DC Mich 1957); Roper v United States,
170 F Supp 763, 1960 AMC 1730 (DC Va 1959) affd 282 F2d
413, 1960 AMC 1719 (Ca4th 1960); Maloney v State of New
York, 141 NYS2d 207, 207 Misc 894 (Ct of Cls NY 1955) citing
this Text, affd 3 NY 2d 356, 1957 AMC 2440 (Ct of App NY
1957); Perez v Marine Transport Lines, Inc., 160 F Supp 853,
1958 AMC 1475 (DC La 1958) citing this Text.”

1]

Bi ie om ne

ees bape

a hn seen seni’ stew

Thus we must conclude from the uncontradicted
facts and said legal authoritics that the vessel was out
, ee service at the time of plaintiff’s injury.

Having reached this point, it remains only to deter-
mine whether plaintiff can maintain his action for un-
seaworthiness or Jones Act negligence under such cir-
cumstances. This Court has said that he cannot. We
concur, With reference thereto, this Court’s attention is
directed to the following cases:

3

Desper v. Starved Rock Ferry Co., (1952)
342 U.S. 187, 72 S.Ct. 216, wherein Mr. Justice

Jackson speaking for the ‘Court at page 218
(S.Ct.) said:

“To be sure, he was a probable navigator in
the near future, but the law does not cover prob-
able or expectant seamen but seamen in being. It
is our conclusion that while engaged in such sea-
sonal repair work Desper was not a ‘seaman’
within the purview of the Jones Act. The distinct
nature of the work is emphasized by the fact
that there was no vessel engaged in navigation at
the time of the decedent’s death. All had been
‘laid up for the winter’, Hawn v. American S. S.
Co., 2 Cir., 107 F.2d 999, 1000; cf. Seneca Washed
Gravel Corp. v. McManigal, 2 Cir., 65 F.2d 779,
780. In the words of the Court in Antus v. Inter-
ocean S. S. Co., 6 Cir., 108 F.2d 185, 187 where
it Was held that one who had been a member of a
ship’s crew and was injured while preparing it for _
winter quarters could not maintain a Jones Act
suit for his injuries: ‘The fact that he had been, or
expected in the future to be, a seaman does not
render maritime work which was not maritime in
its nature.’ ”’ (Emphasis ours).

12

West v. United States, (1959) 361 U.S, 118,
80 S.Ct. 189 wherein Mr. Justice Clark speaking
for the Court at pages 191, 192 (S.Ct.) said:

“Petitioner contends that he-comes under the
doctrine of Seas Shipping Cc. v. Sieracki, 1946,
328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and sub-
sequent cases, holding that the warranty of sea-
worthiness applies to shore-based workers while
on board ship and performing work traditionally
done by seamen. We do not think so. In Sieracki,
the Court said that the warranty applied because
such a shore worker ‘is, in short, a seaman * * *
doing a seaman’s work and incurring a seaman’s
hazards.’ Id., 328 U.S. 99, 66 S.Ct. 880. The
findings here however, show that, for several
— years, the Mary Austin was withdrawn from any
operation whatever while in uerage with the

‘moth ball fleet.’
* * * * *
In short, asthe trial court said, the work to

be done on the vessel was equivalent to ‘home port
structural repairs.’

* * * * *

Here there could be no express or implied
warranty of seaworthiness to any person.”
(Emphasis ours)

Roper v. United States, (1961) 368 U.S. 20,
82 S.Ct. 5, wherein Mr. Justice Clark again speak-
ing for the Court at page 7 (S.Ct.) said:

“Since we are unwilling to upset the trial
court’s factual determination that the S. S. Harry

13

Lane was not a vessel in navigation, it follows that
there was no warranty of the ship’s seaworthi-
ness. West v. United States, supra; Kissinger v.
United States, D.C. 1959, 176 F. Supp. 828.3 This
limitation is analogous to that applied in libels
under the Jones Act, 46 U.S.C.A. 8 688, where it
has long been held that Recery is precluded if
the ship involved is not a vessel in navigation.
,Desper v. Starved Rock Ferry Co.,; 1952, 342 U.S.
1187, 72 S.Ct. 216, 96 L.Ed. 205; Hawn v. Amer-
ican S. S. Co., 2 Cir., 1939, 107 F.2d 999.
(Emphasis ours)

3—The view that a vessel not in navigation: extends no warranty
has often been expressed in the more*familiar context .of to whom
does the warranty extend. E.g., Union Carbide Corp. v. Goett, 4
Cir., 1958, 256 F2d 449. Implicit within such cases is the reason-
ing that those working on vessels not in navigation are not seamen
(or doing seamen’s work) and consequently not among those em-
ployees protected by the warranty of seaworthiness.”

Thus this Court has clearly enunciated the principle
that a person working aboard a vessel that is out of ser-
vice is not entitled to the warranty of seaworthiness and
is not entitled to sue under the Jones Act for negligence.
Nothing could be clearer. No other authorities need be
cited.

However, in spite of the foregoing, the Supreme
Court of Appeals of Virginia has rendered an Opinion
which is in conflict with the law as enunciated in Desper
v. Starved Rock Ferry Co., supra, West v. United States,
supra, and Roper v. United States, supra. Said conflict
should be corrected bythisCourt. - | ~

Ss)

14

Vi. CONCLUSION

This Court should not let stand a State Court Opin-
ion in the maritime field which is at variance with deci-
sions of this Court on the same subject: For that reason
and for the more cogent reason that this Court should
always correct error where indicated, itis respectfully
requested that Certiorari be. granted so that said error
may be corrected. :

. Vil. CERTIFICATE OF SERVICE ~~

Three copies of this Petition for Writ of Certiorari

were mailed to Henry E. Howell, Maritime Tower,
Norfolk, Virginia, and three copies thereof were mailed
to Richard S. Young, Professional Building, Portsmouth,
Virginia, counsel of record for respondent, pursuant to

- the provisions of Rule 33(1) of the Revised Rules of the

Supreme Court of the United States adopted April 12,
1954, before the date of the filing hereof.

Respectfully submitted, |

TIDEWATER CONSTRUCTION
CORPORATION, |
RAYMOND INTERNATIONAL,
INC., and
PETER KIEWIT SONS’ CO.,
individually and trading as"

TIDEWATER-RAYMOND-
KIEWIT

By R. ARTHUR JETT
ROY L. SYKES .

Counsel for Petitioners

R. ARTHUR JETT

ROY L. SYKES

JETT, SYKES & BERKLEY
‘701 Citizens Bank Building
Norfolk, Virginia 23510
Counsel for Petitioners

15

CY WEIN ADS, CD IP LEON IEE IL TAN IY TOE POTS

[ements
.

Ph PAPI PET

LONGSHOREMEN’S AND HARBOR
WORKERS’ COMPENSATION ACT
Title 33 United States Code Annotated
Section 901 ef seq

“$902. Definitions
When used in this chapter—

(3) The term ‘employee’ does not include a master or
member of a crew of any vessel, nor any person engaged
by the master to load or unload or repair any small vessel
under eighteen tons net.” tie

JONES ACT
Title 46 United States Code Annotated
Section 688

"$688. Recovery for injury to or death of seaman

Any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain
an action for damages at law, with the right of trial by
jury, and in such action all! statutes of the United States
modifying or extending the common-law right or remedy
in cases of personal injury to railway employees shall
apply; and in case of the death of any seaman as a result
of any such personal injury the personal representative
of such seaman may maintain an action for damages at
law with the right of trial by jury, and in such action all
statutes of the United States conferring or regulating the
right of action for death in the case of railway employees
shall be applicable. Jurisdiction in such actions shall be
under the court of the district in which the defendant
employer resides or in which his principal office is
located. Mar. 4, 1915, c. 153, § 20, 38 Stat. 1185; June
5, 1920, c. 250, § 33, 41 Stat. 1007.”

la

Present: All the Justices

TIDEWATER CONSTRUCTION \
CORPORATION,

RAYMOND INTERNATIONAL, INC., AND

PETER KIEWIT SONS’ CO.,

INDIVIDUALLY AND AS JOINT VENTURERS

TRADING AS

TIDEWATER-RAYMOND-KIEWIT

-v- Record No. 6976
EDWARD E. DUKE

OPINION BY JUSTICE ARCHIBALD C. BUCHANAN
Staunton, Virginia, September 5, 1969

FROM THE CORPORATION COURT OF
THE CITY OF CHESAPEAKE
Jerry G. Bray, Judge’

The plaintiff, Edward E. Duke, brought this action
against Tidewater Construction Corporation, Raymond.
International, Inc., and Peter Kiewit Sons’ Co., joint
venturers trading as Tidewater-Raymond-Kiewit, de-
fendants, for damages for injuries received while aboard
a barge owned by the defendants, by whom he was then
employed. On trial to a jury he recovered a verdict for
$95,000.00, on which the court entered judgment and
defendants were granted a writ of error.

On their assignments of error the defendants Say
the court erréd in refusing to pass on their plea in bar,
in admitting a deposition into evidence, ‘in granting
plaintiff's instruction No. 1, in refusing their instruc-
tions M and N, and in refusing to set aside the verdict
as being contrary to the law and the evidence.

2a

As plaintiff states in his motion for judgment and
im his brief, his action was brought under the “Jones
Act,” 46 U.S.C.A., 8 688, which provides, so far as here
applicable, as follows:

“Any seaman who shall suffer personal injury
in the course of his employment may, at his elec-
tion, maintain an action for damages at law, with
the right of trial by jury, and in such action all
statutes of the United States modifying or extend-
ing the common-law right or remedy in cases of
personal injury to railway employees shall ap-
ply; * *."! ;

The issue presented is, therefore, whether the plain-
tiff was a seaman within the meaning of the Jones Act.
The cases dealing with the question are legion. “They
turn on individual fact situations; no single factor is con-
trolling, but the whole context must be considered.”
Annotation, 75 A.L.R.2d at 1314.

The vessel on which the plaintiff was working at
the time of his injury was an ocean-going barge approx-
imately one hundred feet long and fifty feet wide, known
as the Big D. It was designed for offshore marine con-
struction, such as light towers. “At each of its four corners
was a spud or leg, operated by compressed air so that
at a construction site the spuds could be lowered to the
_ocean floor and then by means of compressed air the
barge could be raised to the desired height above the
surface of the water to serve as a stationary platform for
the men engaged in the construction job.

_ The job at hand was the construction of the Dia-
mond Shoals Light Station, off Manteo, North Caro-

1—45 US.C.A., § 51 ef seg. Section 56 of said Title 45 provides that the
jurisdiction of the courts of the United States under this chapter (ch. 2)
“shall be concurrent with that of the courts of the several States.”

3a

Wy Bie § Pad fff .

fs a 5: i \
lina. This was to be the third joift venture of the de-
fendants. They had previously constructed the Chesa-
peake Bay Bridge-Tunnel and thereafter the Chesapeake
Off Shore Light Station. 7

/
{

The plaintiff first went to work for the defendants
about March 1, 1965, when they were preparing the
Big D for service in constructing the Chesap¢ake Light
Station about thirteen miles offshore from Virginia
Beach. During that construction plaintiff worked as a
mechanic, looking after the air compressors, jacks and
other machinery.

Plaintiff introduced a cardboard model of the Big
D which he had made and explained to the jury the
structure of the barge and some of its equipment, point-
ing out its four generator units which supplied the air
for operating the spuds and grippers on the vessel. The
barge was not self-propelled but was towed to the work
site where it was to be used. It carried four anchors
for use to hold the barge in place at the work site and
these anchors were operated by the workmen on the
barge. It was arranged so that its crew could eat and
sleep on it. |

During his employment on the barge at the Chesa-
peake Tower, the plaintiff was told that his work was
Satisfactory and that he would be employed on the next
job, which was the construction of the Diamond Shoals
Light Tower. The defendants had contracted in or
before December 1964 to do that work and expected to
use the Big D on the job. The Chesapeake Tower job
was completed in July 1965 and plaintiff was then as-
signed to another job at Yorktown. He was then told,
he said, that when the Yorktown work was finished “we”
would come back and make the Big D ready for sailing.

4a

On March 14, 1966, plaintiff resumed his employ-
ment by the defendants and |began helping to get the
Big D ready for the Diamond Shoals job. The Big D
was then afloat in the Elizabeth River, secured by lines
running from the stern, from the bow and from the
‘center. It was boarded by means of a gangplank.

The plaintiff testified that the crew then on the
Big D was practically the same as had been on the
Chesapeake Tower job. They were, he said, a fireman,
an “operator,” the deck crew men called the riggers,
who were also the pile driving men, and a Mr. Warren.
Plaintiff was hired as a mechanic and his work was
maintaining the equipment on the deck of the barge.
Their purpose was to put the barge in order for the
work ahead at Diamond Shoals.

When the Chesapeake job was completed, parts of

_ the equipment of the barge were taken off and stored
for protection and preservation. The master mechanic,
under whom the plaintiff worked, said the vessel was
“winterized” for the winter. On March 14, 1966, de-
fendants began to prepare the Big D for the Diamond
Shoals job, which was due to be completed on May 1, »
1966. This preparation required a lengthening of the
spuds, certain electrical work and a general overhauling
of the equipment. This work required about six weeks
and was within a week of being completed when plain-
tiff suffered his injuries.

When plaintiff came aboard on Saturday, the day
of the accident, the spuds were ready to be get in position
and at the time of his injuries all four had been set. On
that morning he had been told they were ready for him
to hook up the jacks so the air could be applied to the
grips and the equipment tested over the weekend to
make the vessel ready for sailing. The cook had come
aboard and supplies were being brought on the barge. °

Sa

At the time of the accident plaintiff was engaged
in hooking up the fourth spud when he slipped and
fell on grease which had ‘been allowed to accumulate on
the deck where he was required to work. In falling he
knocked open a high pressure air valve which released
high pressure air through the hose he was holding, caus-
ing him to lose control of the hose. It whipped around
uncontrolled on the deck and struck the plaintiff, result-
ing in a severe fracture of his leg. He has been able to
work only occasionally since. |

Under their assignments of error the defendants
contend, first, that the court erred in “failing to pass on”
their plea in bar as a separate issue prior to submitting
the case to the jury on its merits. This plea alleged that
the court had no jurisdiction of the subject matter be-
cause the barge on which the plaintiff was working
when he was hurt was out of service; that plaintiff was
not a member of the crew; that he was not a seaman;
that he was not entitled to ary Warranty of seaworthiness,
and that his exclusive remedy was under the Longshore-
men’s and Harbor Workers’ Compensation Act (33
U.S.C.A., § 901 ef seq.). 3

After consideration the court entered an order which
stated that substantially all of the evidence necessary to
a trial on the merits of the case was necessary to the de-
termination of the status of the plaintiff and of the ves-
sel, and that these issues could be determined by the
court and jury at one trial without burdening the parties
and the court with two trials. Consequently, it was
ordered that the defendants file their answer and that
the cause of action on the merits be consolidated for
trial with defendants’ special plea.

The several hundred pages of testimony taken on
these questions and the outcome of the case demonstrate

ha

- the propriety of this holding and distinguish this case
from Lucas Vv. Biller, 204 Va. 309, 130 S.E.2d 582, cited ,
by the defendants. There was no error in the procedure
complained of. / ,

Defendants next assert that the court erred in per-
mitting the deposition of Bruce Filmore Hale to be ad-
mitted into evidence and read to the jury, on the grounds
that it was not properly filed as required by § 8-314 of
the Code of Virginia, and that it was not shown that
the witness was out of the State as"required by § 8-313.

) When the deposition was offered, defendants ob-
jected only on the ground that it had not been filed as
required by statute. The statute,’$ 8-314, provides that it
shall be certified and returned by the officer taking it,
or sealed and sent to the clerk of the court or to the per-
son before whom it is to be read. The court ruled that
the deposition would not be received as offered, but that
if “the reporter” presented it to the court with the aver-
ment that it was correct, it would be accepted. Apparent-
ly this was done and no further objection was made by
the defendants to the reading of the deposition. The
objection now made that it was not proved that the wit-
ness was out of the State comes too late. It may be added,
however, that one of plaintiff's attorneys made an ex-
planation which satisfied the court on that point. It
was not error to allow the deposition to be read to the

jury.

7a

Defendants next assert that the courrérred in giving
plaintiff's instruction 1. Their objection relates only to
the second paragraph of the instruction. The printed
record shows no objection or exception taken to the
giving of this instruction. We find, however, in the
manuscript record the statement’ that the defendants note
their exception to Paragraph 2 of the instruction, and
the statement that the “defendants do not believe that
the factors as so defined are in accord with those estab-
lished by the Supreme Court*in West versus U. S., 1959,
361 U.S. 118,” and the further statement that “the factors
Stated for consideration by the Jury are more detailed
than those given by the Supreme Court in West versus
-U. S.” Such an exception does not comply with Rule
1:8 of Rules of Court. See Harlow v. Commonwealth,
195 Va. 269, 273, 77 S.E.2d 851, 854. Moreover, West
v. U. S. was not an action under the Jones Act. It in-
volved a libel under § 781 of Title 46 of U.S.C.A. relat-
ing to a “Liberty” ship which had been in the “moth-
ball fleet” at Norfolk “in total deactivation” for several.
years. 361 U.S. 118, 80 S.Ct. 189, on appeal from 256
F.2d 671. It suggested no error in the giving of instruc-

2—“INSTRUCTION NO. 1 oye

“The Court instructs the jury that the plaintiff, Edward E. Duke,
brought this suit under the Jones Act, which is an Act affording a recovery
for personal injuries to seamen of various types of vessels that are in navigation
at the time of the injury. For the purposes of these instructions the terms
‘seamen’ and ‘members of the crew’ are used interchangeably.

“To be in navigation within the meaning of the Jones Act, the vessel
need not be on station and cartying out the function for which it is designed.
You may consider the character of the work being performed aboard the
vessel, the presence of the crew performing the customary work of the vessel,
the measure of control by the owner over the vessel as a whole, her stage of
readiness for carrying out the function that the vessel was designed for.

“The Court further instructs you that if you find that the ‘BIG D’
- was not in navigation at the time of the plaintiff’s injuries, then your delib-
erations are at an end and you shall find for the defendant[s],~but if you
find that the barge ‘BIG D’ was in navigation, then you shall consider the
further instructions the Court now makes to you.”

8a

tion | and the giving of that instruction involved no re-
versible error. 7

Defendants assert that the trial court erred in: refus-
ing to give their instructions M3 and N4. Again we do
not find in the printed record that any objection was
made or exception taken to the refusal of these instruc-
tions. We look to the manuscript record to find that
defendants “noted their exception” to refusing instruc-
tion M on the ground that it was in accord with Desper
v. Starved Rock Ferry Co., 342 U.S, 187, 72 S.Ct. 216,
96 L.Ed. 205, and Antus v. Interocean Steamship Co.,
(C.C.A. 6), 108 F.2d 185. :

In Désper the plaintiff when injured was on board
a moored barge and engaged in painting life preservers
for use on sightseeing boats which were then blocked
up on land. The court in its opinion said that whether
an individual was.a seaman depended on the facts of the
particular case and the “facts in this case are unique.”
Desper, the court said, was only a probable navigator and
the law covered only seamen in being.

3—“INSTRUCTION NO. M

“The Court instructs the jury that even if you believe from the evidence
that the plaintiff was employed on the BIG D during the construction of
the Chesapeake Light Tower and even if you further believe that it was
contemplated that he would also be employed on the BIG D during the
construction of the Diamond Shoals Light Tower, this does not constitute
him a seaman or a member of the crew thereof if you further believe that
at the time of plaintiff’s accident the BIG D was out of service and that at
said time he was engaged in preparing the BIG D for return to service.”

4—“INSTUCTION NO. N

“The Court instructs the jury that if you believe from the evidence
that the BIG D was laid up and out of «service for a period of approximately
eight (8) months prior to plaintiff’s accident, and was in. the process of
being thoroughly rehabilitated for return to service at the time thereof, then
the BIG D had no crew, and under such circumstances you should find that
the plaintiff was not a seaman or a member of the crew thereof.”

9a

—

fo age

2
St

In the present case plaintiff was dn board a vessel
afloat, almost ready for its voyage to the work site and
plaintiff was engaged in fitting it for its designated task.

In Antus, supra, the vessel “had been withdrawn
from navigation”. The work being, done was not even
preparatory to navigation, but consisted of “preparing
the vessel for winter quarters.”

The present case is clearly distinguishable from

. Desper and Antus on its facts.

rd

In the more recent case of Butler v. George W.
Whiteman, 356 U:S, 271, 78 S.Ct. 734, 2 L.Ed.2d 754, a
barge was moored to the wharf and a tug was lashed to
the barge. Decedent had been engaged in cleaning the
boiler of the tug and met his death by drowning under
circumstances not clearly shown. He was last seen alive
while running across the barge to the tug. The lower
courts dismissed the action for his death under. the
Jones Act. In a per curiam opinion the Supreme Court
- reversed, holding that the evidence. presented a jury
question as to whether the tug was in navigation.

Instrugyjon N would have told the jury that under
the circumstances therein stated, which in themselves
were at least of questionable accuracy, the plaintiff was
as a matter of law not a seaman or a member of the
crew. Under Butler these were jury questions.

We find no error in the refusal of instructions M
and N. ;

The defendants assert finally that the court erred in
refusing to set aside the verdict as being contrary to the
law and the evidence. They say in their brief that the
paramount question is whether the plaintiff was a seaman ’

entitled to sue under the Jones Act.

10a

In the case of Offshore Company v. Robison, § Cir.,
266 F.2d 769, 75 A.L.R.2d 1296, in an instructive opinion
by judge Wisdom, it was said:

“* * The Act has always been construed lib-
erally, but recent decisions have expanded the
coverage of the Jones Act to include almost any
workman sustaining almost any injury while em-
ployed on almbst any structure that once floated
or is capable of floating on navigable waters, * *”

266 F.2d at 771, 75 A.L.R. 2d at 1301.

‘Offshore Company was in the business of drilling
and exploring for oil and gas. It owned and operated a |
drilling rig mounted on a barge with retractable legs
‘or spuds, and operated in a fashion similar to that of the
Big D. kt was “strictly a drilling platform.” At the
time of the accident “it was resting firmly on the bottom
of the Gulf of Mexico”. Robison was an oil field worker.
When the accident happened he was working on the main
deck of the barge as a driller’s helper. He had never
worked as a “seaman” on board a “vessel” as those terms
are ordinarily understood. He was injured when a cas-
ing fell and broke his leg. He sued the company on the
ground that he was a seaman and member of the crew.
His case was heard before a jury as an action under the
Jones Act and the general maritime law. He recovered
a verdict and judgment which were affirmed by the
Court of Appeals, 5 Cir. Said the Court: “Whatever
may have been the original intention of Congress, courts
have given an extremely liberal interpretation to the
terms ‘seaman’. and ‘member of a crew of any vessel’
without provoking any congressional amendments re-
stricting the coverage of the act.” 266 F.2d at 774, 75
A.L.R.2d at 1304.

After pointing out that the Supreme Court had held
that the effect of the Longshoremen’s and Harbor Work-

lla

ers’ Compensation Act was to restrict the benefits of the
Jones Act to “‘members of a crew of a-vessel,’” the
Court said: - : es

“Gianfala v. Texas Company, 1955, 350 U.S.
879, 76 S.Ct. 141, 100 L.Ed. 775, reversing Texas
Company v. Gianfala, 5 Cir., 1955, 222 F.2d 382,
is the key case in the conversion of offshore oil
field workers into seamen, * *” 266 F.2d at 774,
75 A.L.R.2d at 1304

In that case, said the Court, the defendant contended
that the drilling barge was not a vessel in navigation and
that the decedent was an oil field employee whose duties
were not primarily in aid of navigation; but the trial
court held that his status was a question for the jury. The
Fifth Circuit Court reversed, holding that decedent was
not aboard primarily to aid in navigation and not as a
member of the ship’s crew, but as a member of the
drilling crew. But the Supreme Court reversed and ina
per curiam opinion, and without discussing the law but
citing four cases, ordered that the judgment be reinstated.

In the four cases, all decided for the plaintiffs, one
of the plaintiffs was a member of a drilling crew on a
submersible drilling barge, one a foreman on a derrick,
one «a common laborer on a dredge, and the fourth a
deck hand on a dredge.

The Offshore opinion also discussed the case of
Senko v. Lacrosse Dredging-Corporation, 352 US. 370,
77 S.Ct. 415, 1 L.Ed.2d 404. Senko was a handyman on
a dredge which was anchored to the shore and used as a
stationary earth-moving machine. He ran errands on
shore, was paid by the hour, lived at home and brought
his own meals to work. He had no duties connected with
moving the dredge. He was injured ashore while place

ing a signal lantern from the dredge in a shed on the

19.

neighboring bank. He brought suit under the Jones Act
and a jury returned a verdict in his favor, but the trial
court set it aside on the ground that the evidence was
not sufficient to show that he was a member of the crew.
The Supreme Court reversed and in its opinion stated
that “‘a jury’s decision is final if it has a reasonable
basis, whether or not the appellate court agrees with the
jury’s estimate.’” 266 F.2d at 777, 75 A.L.R.2d at 1307.

After reviewing the Supreme Court decisions, the
Court in Offshore concluded:

‘“* * there is an evidentiary basis for a Jones
Act case to go to the jury: (1) if there is evidence
that the injured workman was assigned perma-
nently to a vessel (including special purpose struc- |
tures not usually employed as a means of transport
by water but designed to float on water) or per-
formed a substantial part of his work on the ves-
sel; and (2) if the capacity in which he was em-
ployed or the duties which he performed contribg
uted to the function of the vessel or to the accom-
plishment of its mission, or to the operation or
“welfare of the vessel in terms of its maintenance
during its movement or during anchorage for its
future trips.” 266 F.2d at 779, 75 A.L.R.2d at
1309.

In the present case, Duke was a member of a crew
engaged in putting the barge in condition to be floated
to the site in the ocean where it would be used in the
construction of the Diamond Shoals Light Tower. This
work was being done while the barge was afloat in the
Elizabeth River, where there were large tugs, oil tanks,
yachts and other vessels afloat, and had proceeded nearly
to completion when the accident occurred. At that
time all four of the spuds had been set in position. On

13a

Saturday morning when the plaintiff came aboard he
was told that the spuds were ready for him to hook up
the jacks so the air could be applied to the grippers, and
the equipment be tested over the weekend to .see that
it was ready for sailing. The cook had come aboard and
supplies were being brought aboard. In the week follow-
ing, the barge was floated to the work site and the work
of constructing the light tower was begun.

We hold that under the facts as the jury could have
determined them to be from the evidence, and consid-
‘ered in the light of the Supreme Court decisions, the
plaintiff came under the Protection of the Jones Act
and the judgment appealed from is accordingly

Affirmed.

14a

VIRGINIA:

Before Harold F. Snead, Chief Justice of the
Supreme Court of Appeals of Virginia, on Monday,
November 17, 1969, in vacation of said Court.

Tidewater Construction Corporation,
Raymond International, Inc., and
Peter Kiewit Sons’ Co., individually
and trading as Tidewater-Raymond-
Kiewit, |
Plaintiffs in error,

against | Record No. 6976
Edward E. Duke,

Defendant in error.

ORDER STAYING EXECUTION OF JUDGMENT

Upon consideration of the petition of the plaintiffs
in error, by counsel, praying for a stay of execution of
the judgment entered herein on October 14, 1969, =)
order that they may have reasonable time and oppor-.
tunity to present to the Supreme Court of the United
States a petition for a writ of certiorari to reviev’ the
judgment of this court, it is now ordered that the execu-
tion and enforcement of the judgment of this court in
the above-styled case entered on October 14, 1969, be,
and the same is hereby, stayed, until the 12th day of
January, 1970, on the expiration of which time the same
may be enforced unless the case has’ been before that
time docketed in the Supreme Court of the United States,
‘n which event enforcement thereof shall be stayed until
the final determination of the case by that court.

The above stay of execution of judgment, however,
is not to become effective until plaintiffs in error, or
some one for them, enter into bond with sufficient secur-

15a

ity to be filed with the clerk of the Corporation Court
of the City of Chesapeake, and approved by the judge
of said court, in the penalty of One Hundred Twenty
Thousand ($120,000.00) Dollars upon condition that if
plaintiffs in error fail to make application to the Supreme
Court of the United States for a writ of certiorari in said
case within the period allotted therefor, or fail to obtain
an order granting their application, or fail to make their
plea good in the Supreme Court of the United States,
they shall answer for all damages and costs which the
defendant in error may sustain by reason of the stay, or
in lieu thereof, by appropriate instrument, to be filed

with the clerk of the Corporation Court of the City of |
Chesapeake, and approved by thes judge ‘3 said court,
continue in full force and. effect/ghe supegsedeas bond
heretofore given in said CorporatidA Court 6f the City of
Chesapeake staying the executiog of its judgment in this
case pending the application to this court for writ of
error and supersedeas, and make the said bond subject
to the added conditions hereinabove specified, and which
instrument shall be joined in by the surety of said super-

sedeas bond. !

/s/HAROLD F. SNEAD ‘
Chief Justice of the Supreme
Court of Appeals of Virginia

A Copy, /

Teste: |

/s/H. G. Turner, Clerk:

16a

VIRGINIA:

In the Supreme Court of Appeals held at the Su-
preme Court of Appeals Building in the City of Rich-
mond on Tuesday, the 14th day of October, 1969.

TIDEWATER CONSTRUCTION

CORPORATION, et al., etc.,
Plaintiffs in error,

against 3

EDWARD E. DUKE,

Defendant in error.

UPON A PETITION TO REHEAR

On mature consideration of the petition of the plain-
tiffs in. error to set aside the judgment rendered herein
on the Sth day of September, 1969, and grant a rehear-
ing thereof, the prayer of the said petition is denied.

A Copy,

Teste:
/s/H. G. Turner, Clerk.

17a

fe48 75

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1291%3A1. Public record. Not legal advice.