# Petition for A Writ of Certiorari — United States Steel Corp. v. Peck > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0198%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 404 U.S. 1019 ## Text U.S In the Supreme Court of the United States OCTOBER TERM, 1971. No. 71-5564 UNITED STATES STEEL CORPORATION, Petitioner, PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals For the Eighth Circuit. | Luctan Y. Ray, Roman T. Keenen of McCreary, Ray & Rosrvson, 1550 Union Commerce Building, Cleveland, Ohio 44115, Attorneys for Petitioner. =—=—=—==> eee THE CATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-8647 TABLE OF CONTENTS. Opinion of the Court Below _______-_____________ 1 ES ETE ES a NSP Ta I y) a rene enatineeomnenen 2 i a aeneue 2 Statement of Facts and of the Case _______-_____ 3 Reasons for Granting the Writ __________________ 8 ARE EAR OR 15 APPENDIX: Findings of Fact and Conclusions of Law of Trial RES ER APSR EES NR RN 16 Order for Judgment of Trial Court ___________ 28 Memorandum of Trial Court _________________ 28 Opinion of the United States Court of Appeals ET 33 Judgment of the Court of Appeals _____-_______ 35 TABLE OF AUTHORITIES. Cases. Frankel v. Bethlehem-Fairchild Shipyard, Inc., 132 ff EY, ee eee eenene neers 13 Guerrini v. United States, 167 F.2d 352 (CCA 2,1948) 11 Lyon v. United States, 163 F. Supp. 206 (D.C. E.D. N.Y. 1958) aff. 265 F.2d 219 (CCA 2) ________ 14 F ope & Talbot v. Hawn, Inc., 346 U.S. 406 (1953) __ 8 Roper v. United States, 368 U.S. 20 (1961) _____- 12, 13 Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) __ 8,9 United Pilots Assn. v. Halecki, 358 U.S. 613 ________ 9 Usner v. Luckenbach Overseas Corp., 91 S. Ct. 514 5 an EEA IS TE Reece ee eso RE 10 West v. United States, 361 U.S. 118 (1959) ___-_- 12 Statutes. 28 USCA. See. 1254603) ........._...._......... 2 Re is CUI II stances cincndensestcehiisctcchiiniintnanilaaae 2 In the Supreme Court of the United States OCTOBER TERM, 1971. ee UNITED STATES STEEL COLYORATION, Petitioner, vs. FRANCIS R. PECK, Respondent. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals For the Eighth Circuit. To the Honorable, the Chief Justice and Associate Jus- tices of the Supreme Court of the United States: Petitioner, United States Steel Corporation, respect- fully prays that a Writ of Certiorari issue to review the final judgment of the United States Court of Appeals for the Eighth Circuit, entered in the above entitled matter on August 20, 1971. OPINIONS OF THE COURTS BELOW. The opinion of the United States District Court for the District of Minnesota, Fourth Division, is reported at 315 F. Supp. 905 and is set forth at p. 16, infra. The opin- ion of the Court of Appeals for the Eighth Circuit is un- reported (infra, p. 33). 2 JURISDICTION. The judgment of the Court of Appeals, affirming the District Court, was entered on Augrst 20, 1971 (infra, p. 35). The jurisdiction of ‘his Court is invoked under 28 U.S.C.A. Sec. 1254(1). QUESTION PRESENTED. Whether a shore-based ironworker, injured on an incompleted vessel not in navigation and while not doing work traditionally done by seamen, is entitled to the warranty of seaworthiness. STATUTES INVOLVED. There are no statutes involved. Count I of the com- plaint sought the recovery of damages under the Jones Act (46 U.S.C.A. Sec. 688). The District Court ruled that the suit had not been filed within the three-year limitation period of that statute and that Count I was barred. No appeal we. taken from that ruling. 3 STATEMENT OF FACTS AND OF THE CASE. This action was brought by Francis R. Peck against United States Steel Corporation seeking damages allegedly caused by negligence and/or breach of the war- ranty of seaworthiness. The complaint was in three counts. Count I sought damages under the Jones Act. Count II sought damages for unseaworthiness. Count III sought the recovery of maintenance and cure. The trial . commenced on April 22, 1970, béfore the Honorabl> Earl R. Larson, District Judge, sitting without a jury. The petitioner adopts 2s a part of its statement of facts the following findings of fact made by the District Court: 1. Plaintiff, an Indian with a fifth grade education, is now thirty-four years old. He has been a member of the Ironworker’s Union since May 17, 1963. During the spring and summer of 1964 he was em- ployed by defendant in the construction of missile sites in North Dakota. In the spring of 1965 he was called by the American Bridge Division of defendant to work at the site of the construction of the Platte-Wenner Bridge. This bridge was to be about a mile in length and was to span the Fort Randall Reservoir, a part of the flocd control system on the Missouri River. The Missouri River is a navigable river and the Fort Randall Reservoir is a part of that river. American Bridge Division had a contract for ihe superstructure or sieel erection work on the girder span bridge. 2. Plaintiff arrived at the construction site on or about May 3, 1965, eight days before the accident which is the subject of this action. About six other workers were already at the site, engaged primarily in putting together an S2 derrick barge. Plaintiff had no prior experience mi 4 with the S2 derrick barge and had not seen one prior to beginning work on this project. 3. The girder span bridge superstructure is built by placing steel girders onto bridge piers, which had been installed prior to the beginning of defendant’s part of the project. The S2 derrick barge is used to lift the steel erection materials from a supply Large and to place them in their proper position in the bridge work. 4. All materials used in the construction work, in- cluding the component parts of the S2 derrick barge, were transported to an area near the bridge site by rail and by truck. The equipment to be used for the construction work, including the S2 derrick barge, a materials barge, a towboat or Tesco tug, and a 100-ton Manitowoc crane, were assembled on the river bank about 1,000 to 2,000 yards from the bridge site. 5. The S2 derrick barge consists of eighteen pon- toons, which are bolted together to form a large platform unit. Each pontoon is welded to insure its watertight integrity. The pontoons are then lifted onto the water by means of the shore-based 100-ton Manitowoc crane. They are bolted together forming an overall deck structure about 108 feet in length and 54 feet in width. The grillage | or sill beams are laid across the width of the deck and | welded to the pontoons. The sill beams are the structural members which bear the weight of the derrick tower and | load. Initially, light welding or tacking is used to hold | the sill beams in place. Heavy welding is then needed to hold the beams in their permanent position. * * * * & 8. The S2 derrick barge has no motive power of its own. It is towed from the riverbank mooring to the con- struction site and is anchored there. It is able to move 5 about the bridge piers bv alternating tension on the various lines connected to the four anchors. The anchors are fastened to heavy cables which are threaded around the perimeter of the barge through fairleads located at the four corners of the barge. The fairleads and their supports must be welded to the deck of the barge. The stringing of the cable requires a good deal of precision in order for the elaborate anchoring system to operate effectively. We continue with the statement of facts which are pertinent to the question presented in this petition, with supporting appendix references. On the day of the accident and for several days prior thereto, the S2 derrick barge was partly floating on the river and partly resting on the riverbed (App. pp. 69, 86). It was secured to the shore by three or four mooring lines. The lines were primarily slack safety lines, since the semi- grounded condition of the structure secured it against movement. The river was approximately twenty-eight feet deep on tl.e outside of the barge. On the shore side the river was eleven inches deep and the underside of the barge was resting on the river bottom to give greater stability and security to the assembly operations (App. pp. 69, 86). Because of changing wind and water level conditions in the Fort Randall Reservoir, periodic checks were made during non-working hours to make certain the craft was properly secured (App. p. 69). Access to the barge was by means of a fifteen to twenty foot plank extending from the river bank over the water to the deck of the barge. On the day of the accident the structure was 70-75% completed (App. p. 60). An additional 4-5 days or more (depending on availability of labor) would have been necessary to complete assembly work on the derrick barge 6 in order to make it ready for service (App. pp. 64, 71, 137). Substantial welding remained to be done; bolting and fastening of the pontoons was 60% completed (App. pp. 64, 73, 134). No water pumping into or among the pontoons had yet been done to make water ballast adjust- ments to compensate for the uneven weight distribution on the structure (App. p. 73). The pontoons were being checked and adjusted for leakage. The anchor lines hoisting engine was not yet completely attached to the deck (App. pp. 71, 72). The derrick equipment was unfinished and unfit for use on the day of the accident (App. pp. 59, 60, 74, 100). The derrick tower, an integral part of the derrick equip- ment, was not yet welded to the deck (App. pp. 74, 101). The designed and intended service of the S2 derrick barge was the erection of structural steel at the bridge erection site (App. pp. 112, 114). Cn the day of the accident plaintiff had been assigned to a variety of tasks involving construction of the derrick barge (App. p. 65). These included tightening bolts on the tower leg, helping in the welding of the front beam and clean-up work connected with the construction of the derrick (App. p. 65). Immediately prior to the accident, he was cleaning up the deck of waste material used in fabricating the unit (App. p. 65). Plaintiff's clean-up of construction material was work incident to his general duties in helping construct the derrick barge (App. pp. 59, 116). Sometime during the day of May 11, 1965, James P. Ralston, the plaintiff's immediate superior, decided to attempt to pick up the Tesco tug and place it in the water. As the attempted lift was being made and when the tug was about twelve feet in the air, the entire tower collapsed. As it collapsed, a 100-gallon propane gas tank ruptured POO CEI Ae ESR Ee + eneer ———— 7 and exploded resulting in the plaintiff being severely burned and thrown into the water. The immediate cause of the accident was the fact that the derrick tower was not yet welded to the deck (App. pp. 84, 101). Ralston was negligent in attempting to use the lifting equipment on the unfinished derrick at the time when he knew this equipment was not yet properly assembled or attached (App. p. 85). The District Court ruled that the derrick barge was a “vessel” which was subject to the warranty of seaworthi- ness; that the type of work in which the plaintift was en- gaged at the time of his injury was the type traditionaily done by seamen and was of the general type of mainte- nance work that would have continued when the vessel was at the bridge site; that although the derrick barge was admittedly not fully constructed, the act of attempting to raise the tug constituted a warranty that the lifting equip- ment was seaworthy for the use for whick it was intended (Appendix, pp. 28-29 and 31-32, infra). The District Court concluded as a matter of law that the plaintiff was “a shore-based worker on a vessel in navi- gation doing a seaman’s work and was within the class of workers protected by a warranty of seaworthiness” (Ap- pendix, p. 27, infra). Judgment was entered for the plaintiff and against the defendant in the sum of $69,795.43, plus interest and costs (Appendix, p. 28, infra). The Court of Appeals in a per curiam opinion filed on August 19, 1971, ruled that the findings of fact of the trial court were not clearly erroneous and that that Court had correctly applied the law to the facts, as found. The judg- ment was affirmed on the basis of the opinion of the Dis- trict Court (Appendix, pp. 33-35, infra). 8 REASONS FOR GRANTING THE WRIT. I. This petition presents the important question of whether a shore-based ironworker, injured while perform- ing the ordinary duties of his trade on an unfinished vessel not in navigation, is entitled to the warranty of seaworthi- ness. It involves an interpretation of the rulings of this Court in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) and Pope & Talbot v. Hawn, Inc., 346 U.S. 406 (1953) and specifically, by ruling in Hawn that the warranty should apply to a shore-based worker who was repairing grain- loading equipment, this Court intended to include all shore-based workers who are doing work on a vessel. If the application of the warranty is to be limited to shore- based workers who are doing the work traditionally done by “seamen” and are subjected to their hazards, then the doctrine of Hawn should be reaffirmed. If, on the other hand, it was not the intention of this Court in that decision to impose any restrictions as to the type of work or worker to be covered, then that intention should be made unmis- takably clear. The ruling of this court in Hawn on the question of indemnity for unseaworthiness was not unanimous. In a dissenting opinion by Mr. Justice Jackson, in which he was joined by Mr. Justice Reed and Mr. Justice Burton, it is stated (346 U.S. at page 423): “T think that the expansion of the warranty of sea- worthiness from a seaman to a repairman is illogical, contrary to any decisional! law and not consistent with the scheme of Congress to maintain a sharp distinc- tion between the seafaring man and the harbor worker.” The misgivings of certain members of this Court con- cerning the expansion of the protection of the warranty 9 was evidenced in Seas Shipping Co. v. Sieracki, 328 U.S. 85, the decision which first extended its protection to “those who do not go down to the sea in ships.” The views of Mr. Chief Justice Stone, Mr. Justice Frankfurter and Mr. Justice Burton are expressed in a strong dissenting opinion. In United Pilots Assn. v. Halecki, 358 U.S. 613, this Court indicated that it was not prepared to extend the doc- trine of Sieracki and Hawn. In that case, which involved the death of an employee of a sub-contractor who was on board to clean the generators, this Court, speaking through Mr. Justice Stewart, and referring to Sieracki and Hawn, said (p. 617): “Neither these decisions nor the policy that under- lies them can justify extension of liability for unsea- worthiness to the decedent in the present case. 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 specialist, requiring special skill and special equip- ment—portable blowers, air hoses, gas masks, and tanks of carbon tetrachloride, all brought aboard the vessel for this special purpose, and none connected with the ship’s seagoing operations. * * *” At page 618, this Court said: “* * * Tt 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 sea- men 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 do- ing what any crew member had ever done on this ship or anywhere else in the world so far as we are in- formed.’ 251 F.2d 708, at 715. To extend liability for cannery 10 uns.aworthiness to the decedent here would distort the law of Mahnich, of Hawn and of Sieracki beyond recognition.* * *” As recently as Usner v. Luckenbach Overseas Corp., 91S. Ct. 514 (1971), this Court had reason to refer to the doctrine of unseaworthiness as the basis for a shipowner’s liability for personal injuries or death and the substantial number of Justices who disagreed with the expansion of the unseaworthiness doctrine. There this Court, speaking through Mr. Justice Stewart, stated (p. 516): “The development in admiralty law of the doctrine of unseaworthiness as a predicate for a shipowner’s | liability for personal injuries or death has been fully chronicled elsewhere, and it would serve no useful purpose to repeat the details of that development here. Suffice it to recall that from its humble origin as a dictum in an obscure case in 1922,‘ the doctrine of liability based upon unseaworthiness has experienced a most extraordinary expansion in a series of cases de- cided by this Court over the last 25 years.° The Court’s decisions in some of those cases have been severely questioned, by dissenting Justices and by others, on the basis of history, reason and logic.* * *” There is no factual dispute herein as to the nature of the respondent’s work prior to and at the time of the acci- dent. He was, as the courts below found, engaged in tight- ening the bolts on the tower leg, doing welding on the front beam and general clean-up work (p. 21, infra). This was work that was being done in connection with completing the construction of the derrick barge. All of the jobs, including the task of cleaning up, were related to the construction of the vessel and to respondent’s work as an ironworker. The tasks being performed by the respondent, with the exception of the clean-up work, were those of an iron- en ee rr ener een eee ee ae eee Sr - 11 worker, a specialist. It was not work that was being done in the service cf the vessel but was a necessary part of the construction of the craft. “Neither in legal theory nor in fact” was the respendent performing work traditionally done by seamen. The Circuit Court of Appeals for the Second Circuit did not read Sieracki as intending to extend the protection of the warranty of seaworthiness to all workmen on a ves- sel. Guerrini v. United States, 167 F.2d 352 (CCA 2, 1948), involved an injury to the employee of a sub-con- tractor who was engaged to clean the boilers and tanks of a vessel moored at the contractor’s dock. In referring to Sieracki, the Court said (p. 354): ““* * * The grounds of the majority in Seas Shipping Co. v. Sieracki, supra, were that a stevedore performs part of the ‘ship’s service,’ more particularly that: ‘His- torically the work of loading and unloading is the work of the ship’s service, performed until recent times by members of the crew’ (page 96 of 328 U.S., page 878 of 66 S. Ct.). * * * Yet we should hesitate to - read the decision as intended to extend the protection of what amounts to a warranty of seaworthiness to all workmen upon a ship, however casual their presence there, and however much their relation to the em- ployer is unlike the early paternalistic status of master and crew, many of whose features have vestigially persisted to the present time. At any rate it is proper, if such an innovation is to be made, that it should await the sanction of the Supreme Court in the exer- cise of its function of supplying the inadequacies of the past. The libellant does not assert any such claim; and we hold that the respondent was not in duty bound to furnish him with a seaworthy ship.” This petitioner also awaits a determination by this Court as to whether or not a further expansion of the un- seaworthiness doctvine is either justified or required. 12 18 Even though a shore-based worker may belong to a class to which the warranty of seaworthiness applies, he is not, under decisions of this Court, entitled to the pro- tection of the warranty if the work he was doing was be- ing performed on a vessel which was not in navigation. _ The District Court conceded that there was considerable force in defendant’s argument that shipbuilding is non- maritime but declined to follow West v. United States, 361 U.S. 118 (1959), Roper v. United States, 368 U.S. 20 (1961) and the other cases relied upon by the defendant on the ground that the derrick barge was being readied for navigational use and on the day of the accident the defendant had determined that it was ready for such use (pp. 30-32, infra). | In the instant case, navigational use, in the ordinary sense of that term, was not contemplated. After the con- struction of the derrick barge was completed it was due to be moved to the bridge site where it would be used as a floating platform from which steel members could be hoisted into place on the bridge structure (pp. 17 and 19, infra). The petitioner concedes that its foreman was guilty of negligence in ordering the lifting of the tug before the rear leg of the derrick tower was made fast to the sill beam and the barge itself was completely constructed. We know of no principle of law or of reason which justifies the conclu- sion of the District Court that the negligent act operated to bring about the completion of a vessel which, in fact, was not complete and the placing of the vessel in naviga- tion when, in fact, it was not in navigation. We are still of the view that our reliance, in the lower courts, upon West is justified. This Court, in that case, pointed out that the work being done on the vessel was 13 equivalent to “home port structural repairs.” It further pointed out that in the cases relied upon by the personal injury claimant the vessels “were in active maritime serv- ice in the course of loading and unloading cargo pursuant to voyages and that in those cases the workmen, like the seamen, depended upon the seaworthiness of the ships, their equipment and gear.” (361 U.S., at p. 121). In the instant case, where the situation is comparable to incom- pleted structural repairs, but even stronger in petitioner’s favor, it would be unfair, as this Court said in West, “to say that the vessel owner held the vessel out as seaworthy” (p. 122). There was no justification, on the part of the re- spondent, for any reliance upon the seaworthiness of equipment which had not been completely assembled. In Roper v. United States, 368 U.S. 20, this Court re- affirmed the ruling in West that the test for determining whether a vessel is in navigation is the “status of the ship.” The Court pointed out that the vessel had not been con- verted to any navigational use; that she had no motive power of her own; that the men on board her were not signed on as seamen and that, for all practical purposes, she was simply a floating warehouse. In the case at bar the S2 had no motive power of her own, the men on board were ironworkers, not seamen, and her status was thai of an incompleted vessel, uncommitted, at that time, to navi- gational use. . The case of Frankel v. Bethlehem-Fairchild Shipyard, Inc., 132 F.2d 634 (CCA 4), contains strong language in support of the proposition that the warranty of seaworthi- ness does not apply to work being done on an incompleted vessel. At page 635 the Court said: “Accordingly, since a contract for the building of a ship is non-maritime in character, a tort arising out of work on a launched but incompleted vessel also 14 lacks maritime flavor, despite the fact that the vessel is lying in navigable waters. Furthermore, an incom- pleted vessel has yet to take her place in commerce and navigation; whereas a vessel which has been com- missioned and taken into navigation and commerce remains in that status even when coming into a dock and undergoing certain repairs.” (Emphasis sup- plied.) At page 636 the Court stated: “* * * This is in accord with our ruling in United States Casualty Co. v. Taylor, 64 F.2d.521, 524, 545, certiorari denied 290 U.S. 639, 54 S. Ct. 56, 78 L. Ed. 555, where the employee was similarly injured while ‘engaged upon navigable waters in the completion of a new ship launched but not quite finished or placed in navigation as an instrumentality of commerce. Such work is not maritime in the accepted meaning of that term.’ * * *” In Lyon v. United States, 163 F. Supp. 206 (D.C. E.D. N.Y. 1958) aff. 265 F.2d 219 (CCA 2), the libelant was in the employ of an independent contractor and was engaged, at the time of his injury in setting the outboard base of the No. 4 lifeboat. In discussing the warranty of seaworthiness doctrine, the Court stated (pp. 207, 208): “Lyon was a business invitee in the employ of Project. His occupation was not that of a seaman either in fact, or judicial theory. See Rich v. U.S., 2 Cir., 192 F.2d 858; Berge v. National Bulk Carriers Corp., D.C., 148 F. Supp. 608; 2 Cir., 251 F.2d 717, certiorari denied, 356 1J.S. 958, 78 S. Ct. 994, 2 L. Ed. 2d 1066. He was engaged as a rigger in a repair job on a ship that was afloat, but not in operation. Her engines were being overhauled and repaired, and could net function on June 2, 1952, or for many days prior. “To exact from her owner anything that could even by remote suggestion be termed seaworthiness, 15 would be to impute to that expression.a meaning which even the most ardent pursuit of underwriting liability would not justify.” Employees who are injured on a vessel not in naviga- tion are not seamen and are not doing seamen’s work. The respondent herein was unquestionably in that category. CONCLUSION. It is necessary for this Court to review the decisions below to settle a question of admiralty law of fundamental importance. It is a question which is not confined to the litigants herein but will have a decisive bearing upon the rights of all shore-based workers who perform services upon a vessel on navigable waters. To that end the judg- ments below should be reviewed and reversed. Respectfully submitted, Lucian Y. Ray, Roman T. KEENEN, McCreary, Ray & Rosinson, Counsel for Petitioner. 16 APPENDIX. FINDINGS, CONCLUSIONS, ORDER AND OPINION OF THE TRIAL COURT. No. 4-68-Civil 376 UNITED STATES DISTRICT COURT District or MINNESOTA, Fourtx Drvtsion. FRANCIS R. PECK, Plaintiff, vs. UNITED STATES STEEL CORPORATION, a corporation, Defendant. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT. The a entitled action by the plaintiff Francis R. Peck is a claim against United States Steel Corporation seeking damages for personal injuries caused by the negli- gence and/or breach of warranty of seaworthiness of United States Steel. The complaint is in three counts. Count I seeks damages under the Jones Act. Count II seeks damages for unseaworthiness. Count III asks for maintenance and cure. Defer ‘ant has admitted a negli- gent act by one of its emp!vyees caused plaintiff's injuries, but denies plaintiff is entitled to recover damages in this action. This case came on for trial commencing April 22, 1970, before the Court without a jury. Attorneys James R. Schwebel and William H. LeParcq appeared for plain- ti. and Attorney Benjamin F. Cornelius appeared for the 17 defendant. The Court having heard the evidence adduced in behalf of all parties, and upon all of the files, records and proceedings had herein, and the Court being fully advised in the premises, and having considered the evi- dence adduced, now makes the following: FINDINGS OF FACT. 1. Plaintiff, an Indian with a fifth grade education, is now thirty-four years old. He has been a member of the Lonworker’s Union since May 17, 1963. During the spring and summer of 1964 he was employed by defend- ant in the construction of missile sites in North Dakota. In the spring of 1965 he was called by the American Bridge Division of defendant to work at the site of construction of the Platte-Wenner Bridge. This bridge was to be about one mile in length and was to span the Fort Randall Reservoir, a part of the flood control system on the Mis- souri River. The Missouri River is a navigable river and the Fort Randall Reservoir is a part of that river. Ameri- can Bridge Division had the contract for the superstruc- ture or steel erection work on the girder span bridge. 2. Plaintiff arrived at the construction site on or about May 3, 1965, eight days before the accident that is the sub- ject of this action. About six other workers were already at the site, engaged primarily in putting together an S2 derrick barge. Plaintiff had no prior experience with the S2 derrick barge and had not seen one prior to be- ginning work on this project. 3. The girder span bridge superstructure is built by placing steel girders onto bridge piers, which had been installed prior to the begimning of defendant’s part of the project. The S2 derrick barge is used to lift the steel erec- tion materials from a supply barge and to place them in their proper position in the bridgework. 18 4. All materials used in the construction work, in- cluding the component parts of the S2 derrick barge, were transported to an area near the bridge construction site by rail and by truck. The equipment to be used for the con- struction work, including the $2 derrick barge, a materials barge, a towboat or Tisco tug, and a 100-ton Manitowac crane, were assembled on the river bank about 1,000 to 2,000 yards from the bridge site. 5. The S2 derrick barge consists of eighteen pontoons, which are bolted together to form a large platform unit. Each pontoon section is welded to insure its watertight integrity. The pontoons are then lifted into the water by means of the shore-based 100-ton Manitowac crane. They are bolted together, forming an overall deck structure about 108 feet in length and 54 feet in width. Then gril- lage or sill beams are laid across the width of the deck and welded to the pontoons. The sill bearas are the structural members which bear the weight of the derrick tower aid load. Initially, light welding or tacking is used to old the sill beams in place. Heavy welding is then needed to hold the beams in their permanent position. 6. The derrick tower is 65 feet high and is triangular at its base. The two rear legs of the tower are placed on two sill beams located slightly behind the center line of the deck. The engine, three-drum hoist and operator’s controls for the derrick are located on the rear one-third of the deck. The 75-foot derrick, the mast, the bull wheel te swing the boom, and the boom are installed on the tower. The main load fall consists of a block with eleven sheaves. 7. In addition to the three-drum hoist and engine supplying power for the hoisting operations of the derrick, a second three-drum hoist and engine is located at the rear 19 of the barge for use in operating the anchor lines used to to maneuver the barge and to hold it stationary during the actual lifting operations. 8. The S2 derrick barge has no motive power of its own. It is towed from the riverbank mooring to the con- struction site and is anchored there. It is able to move about the bridge piers by alternating tension on the var- ious lines connected to the four anchors. The anchcrs are fastened to heavy cables which are threaded around the perimeter of the barge through fairleads located at the four corners of the barge. The fairleads and their supports must be welded to the deck of the barge. The stringing of the cable requires a good deal of precision in order for the elaborate anchoring system to operate effectively. 9. The towboat or Tisco tug’s larger components are two hull sections which are bolted together, plus a cabin which is bolted over the top. The tug, when completed, weighs about fifty-three tons. After preliminary assembly of the hull sections on land, the tug is placed in the water, where additional preparation for service is made. 10. On the day of the accident, and for several days prior thereto, the S2 derrick barge was floating on the river and was secured to the shore by three or four mooring lines. The river was approximately twenty-eight feet deep on the outside of the barge. On the shore side the river was eleven inches deep and the underside of the barge was resting on the river bottom. Without the moor- ing lines the barge was free to float down the river, and periodic checks were made during non-working hours to make certain the craft was properly secured. Access to the barge was by means of a fifteen to twenty foot plank extending from the river bank over the water to the deck of the barge. LLL 20 11. On the day of the accident the pontoon and deck structure was not completed. Some minor bolting re- mained to be done on the pontoons and water to counter- balance the weight of the engines and hoists had not been pumped into the forward pontoons. The pontoons were being checked for possible leakage, a procedure that was carried out even after the derrick barge was at the bridge site. 12. The derrick tower and the derrick were completed and ready for lifting, except that the left side of the rear sill beam had not been welded down and the right side of the rear sill beam was only 60% welded down, and there was thus inadequate attachment of the tower leg to the deck structure. 13. The anchoring system was essentially incomplete. The anchors were on board the barge but they were not attached to the anchor line. The anchor fairleads at each corner of the barge were tack welded into place and the final welding process was just beginning. Three of the tiedowns from the tower to the sill beam were completed. The fenders or bumpers to protect the tiedowns were not installed. The safety walkways and stairs over the sill beams were not installed, nor was the platform around the front leg of the derrick tower. An air compressor used in the operation of small power tools was also not affixed. A shed used by workers for shelter from bad weather, for eating, and for changing clothes had not been installed. 14. The design purpose of the S2 derrick is to lift various materials. The anchoring system is designed to facilitate the use of the derrick barge in bridge building. While the anchoring system is essential to the use of the S2 derrick at the bridge site, the derrick barge may be used for its design purpose in other situations without the 21 anchors. For example, other S2 derricks have operated along a shoreline or riverbank without anchor lines and can be used in this manner to pick up materials on shore or on another barge and move them anywhere within the radius of the crane. 15. In fact, defendant knew this particular S2 der- rick barge would be put to such a use, i.e., lifting the Tisco tug into the water, before the river equipment was in- stalled. 16. At the time of the accident, the S2 derrick barge had all the equipment on board needed for use for its de- sign purpose—lifting. The Tisco tug pick could have been made safely had it not been for defendant’s negligence in attempting the pick without the sill beam properly tied down. 17. The shed walkways and bumpers are not essen- tial to the operation of the S2 derrick for its design pur- pose, and are not essential even when the S2 derrick barge is used in river operations. 18. On the day of the accident plaintiff had been as- signed to a variety of tasks, including tightening bolts on the tower leg, helping in the welding of the front beam, and general cleanup work. Immediately prior to the acci- dent he was cleaning up the deck of the barge of excess waste material, including nuts and bolt and cable. These materials constituted a potential safety hazard to other workers. Deck cleanup work was a normal part of the barge operation, and would continue to be carried on after the barge was put to use ut the bridge site. Plaintiff's work served generally the same purpose as would the safety walkways and stairs, namely, to enable the mem- bers of the barge crew to move safely and easily about the barge while performing their assigned duties. Ee 22 19. Plaintiff’s immediate superior was James R. Ral- ston. Plaintiff reported to Ralston each day and did not know from day to day what his assigned task would be. On the day of the accident and for the days prior thereto, plaintiff's duties were confined almost exclusively to work on the S2 derrick barge. 20. Some time during the day of May 11, 1965, a deci- sion was made by Ralston to attempt a pick up of the Tisco tug for the purpose of placing it in the water. Wallace, an experienced hoist operator and the man hired to operate the hoist during bridge construction, was informed that he shouid stand by. Wallace knew the rear griilage beam was not welded down and expressed concern about this fact to Ralston. The latter said he would “take care of it.” 21. About three o’clock Ralston gave orders to Wal- lace to make a test lift. Wallace swung the derrick out over land and hooked onto the Tisco. He raised the tug about a foot-and-a-half off the riverbank and proceeded to check out his drawworks, including the hoist and swing frictions. He was not completely satisfied with the effi- ciency of the braking system and lowered the Tisco in order to reset his systems. Then he picked up the tug a second time, hoisting it four to five feet off the river bank. Then he raised the boom to bring the load closer to the mast. The tug was by this time about twelve feet in the air. 22. Ralston, who was directing the operation from the riverbank, then gave the signal to swing the tug out over the water. Wallace maneuvered the tug over the water until Ralston ordered the swing stopped. At that point the entire tower collapsed and the barge listed severely toward the open water. MD te ELNINO BY bbe 23 23. As the tower collapsed, a one hundred gallon propane gas tank was ruptured and exploded. Plaintiff was burned severely and was thrown into the water. 24. The immediate cause of the accident was the fact that the rear leg of the tower was not adequately affixed to the sill beam. Ralston should have known that the pick could not have been made safely with the derrick tower in that condition. He nevertheless determined that the S2 derrick barge was ready for the use which he intended to put it to. 25. Ralston thought the tug weighed about twenty- three tons. Since the S2 derrick has a lifting capacity of seventy-five tons under ideal conditions, he thought the tug lift could be made safely even with the leg not com- pletely welded down. In fact, the fifty-three ton weight of che tug placed too great a strain on the tower. 26. In the three-and-a-half years from the time of the injury until this action was commenced, plaintiff and his wife consulted three lawyers with regard to plaintiff’s injuries. Each visit to a lawyer was prompted by a delay in the receipt of workmen’s compensation checks from defendant and was for the purpose of determining if some- thing could be done about getting the checks on a more regular basis. 27. In the spring of 1966 plaintiff and his wife con- sulted with A. William Spiry and Frank Farrar, attorneys in practice together in Britton, South Dakota. The facts and circumstances of the accident and injury to plaintiit we.e explained to each of the attorneys separately. Mr. Spiry made inquiry of defendant to determine the possible existence of third-party liability. The advice of Mr. Spiry and Mr. Farrar was solicited as to any remedies other than or in addition to workmen’s compensation. Each attorney 24 advised plaintiff that his only remedy was under the workmen’s compensation laws. 28. In April of 1967 John Weekman, a claims repre- sentative of defendant, visited plaintiff and his wife at Kidder, South Dakota. Weekman advised plaintiff his only remedy was under the South Dakota workmen’s compensation law. Weekman believed this advice to be accurate and it did not occur to him there was a possible claim under admiralty laws. 29. Plaintiff and his wife subsequently contacted L. R. Gustafson, an attorney at Britton, South Dakota. Again, the main concern was delay in the receipt of com- pensation checks. Upon learning of the facts relative to the accident and injury, Gustafson advised plaintiff his only remedy was under the workmen’s compensation law. 30. Plaintiff believed and relied on the advice given to him by his attorneys. Mr. Weekman made no repre- sentation that differed in any way from the advice plaintiff received from his own counsel. 31. Mr. Weekman was in charge of the investigation of the accident in which plaintiff was injured on behalf of the defendant. He learned of the accident within minutes of its occurrence and via telephone directed that an investigation be undertaken immediately. The investigation included photographs of the barge and col- lapsed tower and interviews with all persons present at the job site during that day. The investigation was com- plete and thorough and defendant has not been prejudiced in any way in preparing to defend this action by the fact that suit was not commenced until three-and-a-half years after the accident. 32. Plaintiff was taken from the accident scene by ambulance to the Platte, South Dakota, hospital. He was ; 25 burned on the legs, arms, chest, back, face and groin. All his hair had burned off. His hands, which had been pro- tected by heavy gloves, were not burned. Plaintiff re- mained at the hospital until July 17, 1965, and was in intense pain for most of that time. — 33. After his release from the hospital plaintiff attempted work as a truck driver at $2.10 per hour. Be- cause of his residual injuries he found that work too difficult and quit after a week. 34. In 1966 he got a job feeding sheep at $1.05 per hour and held that job for about three months. Again, the residual effects of his injuries forced him to quit. 35. In February of 1968, two years aad nine months after the accident. plaintiff returned to iron working on a full-time basis at union scale. At the time of the accident he had been getting $4.17% per hour for a forty hour week, plus $3.00 daily subsistence allowance. Plaintiff’s average earnings were $650.00 per month for a six month season. He has lost approximately $11,200.00 in wages due to his disability. 36. In 1967 plaintiff underwent a skin graft at the Mayo Clinic. Skin taken from plaintiff’s right leg was grafted onto his right arm. He was hospitalized about one month. Plaintiff’s arms remain his chief cause of com- plaint. They ache in winter and itch in summer. For several years after the accident he used a wire painter’s brush to scratch his arms, but he uses that only occasion- ally now. He sleeps with his arms at his sides and experi- ences what he feels is a loss of strength in his arms. He sometimes requires assistance in the heavy lifting re- quired by his employment. 37. Dr. Samuel G. Balkin, an expert in plastic and reconstructive surgery, examined plaintiff shortly before 26 trial and also reviewed the hospital records and reports of other examining doctors. Defendant did not offer any medical testimony. 38. Dr. Balkin found that plaintiff has scar tumors on each ear, with the scar on the right ear more prominent. He has evidence of second degree burns on his nose, cheeks and chin, as primarily evidenced by scarring and enlarged skin pores. He has dense scarring in the center of the upper lip. He has a scar below the left corner of the mouth. He has scarring on the left side of the upper neck just below the jaw. This scar tissue tightens as the neck is stretched. There is also scarring on the right side of the aeck. 39. There is evidence of second and third degree burn scarring on the outer aspect of the right upper arm and very dense scarring at the right elbow. The right fore- arm is covered by a skin graft. This graft is thin. Under- neath it is a layer of scar tissue which serves to glue the new skin to the muscle. The graft has a discoloration and resembles a patch. This discoloration cannot be disguised. 40. There is a hypertrophic scar on the left forearm. While a blow to the right elbow could crack the scar tissue, the left elbow is capable of withstanding certain trauma. 41. Plaintiff should undergo several surgical proce- dures. The keloid scars on the ears should be cut out and certain grafts performed. The keloid tissue continues to grow and may become like a tumor. The total cost of the surgical procedures on the ears and the accompanying hospitalization will be about $1,400.00. 42. Plaintiff will also require a graft for the right elbow. This surgery will be fairly complicated and will require four separate hospitalizations for a total of thirty days A reasonable charge for the surgery is $1,750.00, 27 and a reasonable charge for the required hospitalization is $3,000.00, or a total cost of $4,750.00. 43. The scars on the left forearm have been treated by X-ray. Such scars often break down and malignancy may develop, especially when there has been extensive X-ray treatment. 44. All the scarring is permanent. Plaintiff has a total physical disability of thirty percent as a result of the scarring. He has a fifty percent cosmetic disability, al- though this may be reduced by future surgical procedures. 45. Plaintiff has a life expectancy of about thirty- eight years. For his past and future pain and suffering, his disability because of his scarring, his disfigurement and his impairment of earning capacity, plaintiff is entitled to the sum of $57,000. 46. Plaintiff is entitled to damages of $74,350.00. 47. Subsequent to his injury, plaintiff received bene- fits from defendant under the South Dakota Workmen’s Compensation Law. Benefits were paid for 119 6/7 weeks at $38.00 per week, for a total of $4,554.57, which amourt defendant is entitled to have deducted from the verdict. Defendant has also paid $3,939.49 in medical and hospital bills, and has agreed to pay the cost of the 1967 surgery and hospitalization in Rochester at the Mayo Clinic and St. Mary’s Hospital. CONCLUSIONS OF LAW. 1. Plaintiff was a shove-based worker on a vessel in navigation doing a seaman’s work and was within the class of workers protected by a warranty of seaworthiness. 2. Plaintiff's injuries were a direct result of a breach of the warranty of seaworthiness by defendant. En 28 3. Plaintiff is entitled to recover damages for his in- juries caused by the breach of the warranty of seaworthi- ness. 4. Plaintiff has not been guilty of laches. ORDER FOR JUDGMENT. Judgment will be entered for plaintiff and against defendant in the sum of Sixty-nine Thousand Seven Hun- Hundred Ninety-five Dollars and Forty-three cents ($69,795.43), together with costs and disbursements. June 9, 1970. /s/ Ean. R. Larson, United States District Judge. Memorandum Attached. MEMORANDUM. The facts of this case have been set out in detail by the Court in its Findings of Fact and will not be repeated here. Based on those findings, it is apparent that plaintiff may recover damages for a breach of warranty of sea- worthiness if he fits into the category of a shore-based worker injured on a vessel in navigation while doing a seaman's work. Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Reed v. The Yaka, 373 U.S. 410 (1963); Jackson v. Lykes Steamship Co., 386 U.S. 731 (1967). It is clear that a “vessel” need not be the traditional ocean going vessel to be subject to a warranty of sea- worthiness. The definition includes a variety of special purpose craft, many of which have no motive power of their own, and even includes relatively permanent or stationary structures. Offshore Company v. Robinson, 266 F.2d 769 (5th Cir. 1959); United States v. Moran Towing and Transportation Co., 374 F.2d 656 (4th Cir. 1967) ; Summerlin v. Massman Construction Co., 199 F.2d 715 (4th Cir. 1952); Producers’ Drilling Co. v. Grey, 361 F.2d 432 (5th Cir. 1966). The S2 derrick barge is a special purpose craft which is clearly a “vessel” within the standards established by those cases. It is stipulated that the Fort Randall Reservoir is a navigable water as that term has been defined by the Su- preme Court. Under the Sieracki doctrine, the warranty of sea- worthiness extends to a shore worker who “is, in short, a seaman . . . doing a seaman’s work and incurring a sea- man’s hazards.” Sieracki, supra, at p. 9. The fact that Peck was by label an ironworker is not determinative of his right to the warranty of seaworthiness. The type of work engaged in by plaintiff at the time of his injury was the type traditionally done by seamen and was of the gen- eral type of maintenance work that would have continued when the vessel was at the bridge site. Socony-Vacuum Oil Company, Inc. v. Lawlor, 275 F.2d 599 (2nd Cir. 1959), cert. den. 363 U.S. 844 (1960); The Tungus v. Skovgaard, 358 U.S. 588 (1959). See also Christiansen v. United States, 94 F. Supp. 934 (D.C. Mass. 1951), aff'd 192 F.2d 199 (ist Cir. 1951); Torres v. The Kastor, 227 F.2d 664 (2nd Cir. 1955); Crawford v. Pope & Talbot, Inc., 206 F.2d 784 (3rd Cir. 1953); Landsburg v. Acadia Overseas Freighters, Ltd., 219 F.2d 440 (3rd Cir. 1955). The test for determining whether a vessel is “in navi- gation” is the “status of the ship.” West v. United States, 361 US. 118, 122 (1959). Defendant argues that the S2 derrick was not completed and that therefore no warranty of seaworthiness could attach. There is language to sup- port defendant's position: “The warranty of seaworthiness has never been di- vided into fragments; a ship is either fitted for her duties in all respects, or she is not fitted at all. . . . There is not a syllable in the books to suggest that that the warranty attaches seriatim as part by part re - is made ready for service.” Latus v. United States, 277 F.2d 264 (2nd Cir. 1960). But the facts of this case are distinguishable from Latus and other cases where a vessel has been found to be out of navigation by reason of still being under construction | or being in port or drydock undergoing major renovation. Defendant here treated the S2 derrick barge as though it was completed and in condition for use for one of its design purposes. The decision to use the S2 derrick barge was admittedly a negligent one because in fact there was more work that should have been done, ie., completing the welding on the rear sil] beam. But to hold plaintiff is deprived of his remedy because defendant chose to act as though the vessel was ready for use when it was not would lead to a result completely incongruous with the purpose of the warranty. v. United States, 361 U.S. 118 (1959), and Roper v. United States, 368 US. 20 (1961), is misplaced. In West, a de- 31 of work that each of the numerous shore-based work- men is doing on shipboard at the moment of injury.” 361 US. at p. 122. The factors which serve to distinguish this case from the situation that were explicitly recognized: ; “. . . the vessels involved in the cases depended upon by petitioner were, at the times of the injuries, in the hands and under the control of the owners or char- terers and, instead of undergoing general repairs, were in active maritime service in the course of load- ing or unloading cargo pursuant to voyages. The workmen, like the seamen, depended upon the sea- worthiness of the ships, their equipment, and gear. They were obliged to work with whatever the ship- supplied and it was only fair for the latter to be subjected to the absolute warranty that the ships were seaworthy.” 361 U.S. at p. 121. Similarly in Roper, a de-activated Liberty ship used as a grain warehouse had been towed from one location to another. The accident occurred during the unloading of grain while the ship was moored at its new berth. The Su- preme Court affirmed the trial court’s finding that the act of towing the vessel from one berth to another was not sufficient to place an otherwise obviously de-activated ship “in navigation.” The vessel was not prepared for use as a barge or converted to any navigational use. But here the S2 derrick was being readied for such a use, and on the day of the accident defendant determined that it wus ready for such a use. Defendant here was in complete control of the S2 der- rick. The decision as to when this vessel was ready for use rested exclusively with defendant. Defendant's foreman, Ralston, in deciding to make the lift of the Tisco tug, war- ranted to the workmen on board that the vessel was sea- worthy, that is, that the equipment and gear were in proper condition for the use to which they were to be put. When 32 the equipment failed, plaintiff and others were exposed to serious hazards, including drowning, burning or being struck by falling materials. Under those circumstances, the warranty was clearly breached. The injury to plaintiff was not directly related to any construction work on the S2 derrick. He was not injured in the course of repairing a defect. He was not injured in the course of doing some work to coiaplete construction. He was injured because the defendant determined that the vessel was ready to be used when, in fact, it was not. The final question to be determined is the claim that plaintiff was guilty of laches. The law requires that both inexcusable delay on the part of the plaintiff and preju- dice to the defendant because of the delay be present before laches will apply to bar the action. Measuring laches by the analogous three-year statute of limitations under the Jones Act would be unwarranted in this case, since there is ample evidence that defendant has not been prejudiced in any way by the late filing of this action. West v. Upper Mississippi Towing Corp., 221 F. Supp. 590 (D.C. Minn. 1963), appeal dismissed in Upper Mississippi Towing Corp. v. West, 388 F.2d 823 (8th Cir. 1964). However, the equitable determination for laches can- not be used in determining whether a Jones Act claim may be maintained. There is no evidence that plaintiff relied on any misrepresentation of a material fact by Weekman, de- fendant’s claims agent, or that Weekman’s advice was in any way responsible for the delay in filing of this suit. This case is therefore not within Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (4th Cir. 1949), or Burnett ~. New York Central R. Co., 380 U.S. 424 (1964). Therefore, the Jones Act claim is barred. 45 U.S.C. § 56. For the above reasons, plaintiff is entitled to judg- ment. Eart R. Larson 33 OPINION OF THE COURT OF APPEALS. No. 20,468 UNITED STATES COURT OF APPEALS For THE ErcutTx Crecurr. FRANCIS R. PECK, Appellee, v. UNITED STATES STEEL CORPORATION, Appellant. Appeal from the United States District Court for the District of Minnesota, Fourth Division. [August 19, 1971.] Before Grsson and Ross, Circuit Judges, and Exsexe, Dis- trict Judges.* Per Curiam. This is an action by Francis R. Peck against the United States Steel Corporation, his employer, to recover for per- sonal injuries which he sustained while engaged in the course of his employment. The case was tried without a jury before United States District Judge Earl R. Larson. Judgment was entered in favor of plaintiff in the amount of $69,795.43. United States Steel appeals, urging that the trial court erred in finding that Peck, a shore-based worker, was injured on a vessel in navigation while doing seaman’s work, and in concluding that he was entitled to the warranty of seaworthiness. * United States District Judge, Eastern District of Arkansas, sitting by designation. aS A Se A SSRN RAL A NS 34 The findings of fact by the trial court are not clearly erroneous. Judge Larson correctly applied the law to the facts as found. The judgment of the District Court is affirmed on the basis of the District Court’s opinion reported at 315 F. Supp. 905 (1970). A true copy. Attest: Clerk, U. S. Court of Appeals, Eighth Circuit. 35 JUDGMENT OF THE COURT OF APPEALS. No. 20468 UNITED STATES COURT OF APPEALS For THE E1cutx Crrcurt. September Term, 1970 FRANCIS R. PECK, Appellee, vs. UNITED STATES STEEL CORPORATION, a corporation, Appellant. Appeal from the United States District Court For the District of Minnesota. This Cause came on to be heard on the record from the United States District Court for the District of Min- nesota and was argued by ccunsel. On Consideration Whereof, it is now here ordered and adjudged by this Court, that the judgment of the said District Court, in this cause, be, and the same is hereby affirmed. August 20, 1971 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0198%3A1. Public record. Not legal advice.