Opposition Brief — Stewart v. Waterman Steamship Corp.

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SUPREME COURT, U. S..

Supreme Court of the United States

OCTOBER TERM, 1969

No. 1194

JOHN C. STEWART,

Petitioner,

versus

WATERMAN STEAMSHIP CORPORATION and

ALCOA STEAMSHIP CO., INC.,

Respondents.

BRIEF OF ALCOA STEAMSHIP COMPANY, INC.,

IN OPPOSITION TO THE GRANTING OF A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

- OF APPEALS FOR THE FIFTH CIRCUIT

BENJAMIN W. YANCEY

WILLIAM E. WRIGHT

. Attorneys for Respondent

2141 International Trade Mart

_ New Orleans, Louisiana 70130

TERRIBERRY, CARROLL, YANCEY -

& FARRELL

Of Counsel

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‘ LIST OF AUTHORITIES

TEXTS

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Edelman, Maritime pougiei and Death, Vol. 1,

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CASES

Farrell v. U.S.,. (1949), 335 U.S. 511, 69 S.Ct. 707,

WP AARC rss yee kek cobs se tek eee 4

Muruaga v. United States, et al (C.C.4. 2nd, 1949),

172 ¥’.(2d)" 318, 1949 A.M.C. 214 ............0....., 4

The Osceola, (1903), 189 U.S. 158, 23 S.Ct. 483, 47

Re ME od Gs os on ts GRE ete 4

_ Warren v. United States, (1951), 340 U.S. 523, 76

S.Ct, 423,05 L.Ed. 608 ioe cck hoc cence Me 4

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 1194

JOHN C. STEWART,

Petitioner,

versus

WATERMAN STEAMSHIP CORPORATION and

ALCOA STEAMSHIP CoO., INC.,

Respondents,

\

BRIEF OF ALCOA STEAMSHIP COMPANY, INC.,

_IN OPPOSITION TO THE GRANTING OF A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

O¥ APPEALS FOR THE FIFTH CIRCUIT

AY IT PLEASE THE COURT:

Not only is there no important or special reason

for granting a writ of certiorari in this case, but there

is no reason whatsoever to do so.

The claim of petitioner, a seaman, as, against Alcoa

Steamship Company, Inc., was solely to recover main-

tenance and cure. No claim was asserted against Alcoa

for damages and no accidental injury in Alcoa’s employ

was alleged. At the trial in the district court, it was

2

contended that the seaman was suffering from grand

mal epilepsy. The district judge, in.a formal, written

Opinion, which was in every way fully supported by

the record, found that the seaman:

-“... Was a grand mal epileptic before, dur-

ing, and after his employment aboard ... the

SS ALCOA PARTNER.”

The court also found that the seaman’s grand mal

' epilepsy was not caused by, nor did it flare up during,

his service with Alcoa. ;

\

From these findings, the Court concluded that the

seaman was not entitled to recover maintenance and

cure from Alcoa, and dismissed the complaint.

The Court of Appeals, following briefs and oral argu-

ment, affirmed without dissent the decision of the dis-

trict court, finding that the record fully supported the

conclusion that the seaman was an epileptic, “before,

during, and after his employment ... with Alcoa”.

The petition for a writ of certiorari is written as

though the case had never been tried, and as though

the bare, original assertions of the seaman, made in

the district court, were in fact true, and had in fact

been established and proven at the trial. Quite other-

wise, the record here, just as the two courts below

found, establishes that petitioner’s condition is no dif-

ferent now from what it was “before, during, and af-

ter” his service with Alcoa.

3

Furthermore, this matter presents the clear case

of a seaman, declared unfit for sea duty by the United

States Public Health Service Hospital before his em-

ployment with Alcoa, misrepresenting his medical stat-

us to the shipowner, by Signing aboard Alcoa’s vessel

and holding himself out to Alcoa as fit for duty, when

he knew that he was actually unfit by reason of long-

standing epilepsy and by reason of a specific unfit

for duty discharge by the Public Health Service Hos-

pital.

Accordingly, this is not a case where the seaman

sustained a disabling injury while employed by the

shipowner; nor does it involve an illness which flared

ap or manifested itself aboard the vessel. The case

rather involves a seanmian who has been suffering from

an incurable disease, epilepsy, for many years prior

to his service with the shipowner, Alcoa, and who had

in fact been specifically diagnosed as an epileptic be-

fore entering the shipowner’s employment.

Nothing more occurred aboard Alcoa’s vessel than

one or more of a long series of epileptic seizures which

originally began to occur Shortly after 1946, with the

seizures having no side or after effects.

Finally, the seaman had actually been discharged

by the Public Health Service Hospital as unfit for duty

before his employment with Alcoa. As a result, when

the Alcoa vessel returned to the United States in April,

1961, the United States Coast Guard, having learned

that the seaman had been declared unfit for duty be-

fore joining the Alcoa vessel, immediately contacted

the seaman and took up his seaman’s documents. Sev-

4

“eral days thereafter, on May 1, 1961, in an effort to

have his documents returned, the seaman was ad-

mitted as an inpatient at the Public Health Service

Hospital in New Orleans and was examined. The doc-

tors.concluded, just as they had concluded before the

seaman was employed by Alcoa, that he was suffering

from epilepsy and should remain on anticonvulsant

drugs. Apparently, he did so, because there is no record

of his having received medical attention or treatment

of any nature or kind whatsoever during 1961 and early

1962, that is, for an entire year after leaving Alcoa’s

vessel. In fact, in April, 1961, the seaman returned

to the hospital, not to receive medical attention or

treatment, and not because the sequence of his seizures

had in any way altered, but to have the doctors review

his condition once again, so as to ascertain whether

he was able to return to sea. |

This case, therefore, falls squarely within the hold-

ings that a seaman is not entitled to recover main-

tenance and cure when the illness does not occur and

is not aggrawated or manifested while in the service

of the ship. The Osceola, (1903), 189 U.S. 158, 23-S.Ct.

483, 47 L.Ed. 760; Warren v. United States, (1951),

340 U.S. 523, 76 S.Ct. 423, 95 L.Ed. 503; Edelman, Mari-

‘time Injury and Death, Yolen >...

The case also falls squarely within the basic principle

that a seaman suffering from an incurable disease

is not entitled to maintenance beyond the date of maxi-

mum medical improvement. Farrell v. U.S., (1949),

335 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Muruaga v.

United States, et al, (C.C.A. 2nd, 1949), 172 F.(2) 318,

1949 A.M.C. 214.

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s : Respectfully submitted,

BENJAMIN. W. YANCEY

WILLIAM E. WRIGHT

Attorneys for Respondent

2141 International Trade Mart

New Orleans, Louisiana 70130

TERRIBERRY, CARROLL, YANCEY

& FARRELL

Of Counsel

CERTIFICATE

I, the undersigned, hereby certify that I have this

day mailed, postage prepaid, a true copy of the fore-

going brief for the respondent to Messrs. Kierr and

Gainsburgh, 1718 Nationa] Bank of Commerce Build-

ing, New Orleans, Louisiana, 70112, attorneys for pe-

titioner, and Messrs. Phelps, Dunbar, Marks, Claverie

& Sims, Hibernia Bank Building, New Orleans, Louisi-

ana 70112, attorneys for co-respondent. ?

New Orleans, Louisiana, March , 1970.

William E. Wright

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